ill ii i ,\HMHS««(HiUiii (Somali Ham ^rljonl ffitbrary Cornell University Library KE 140.2.C18 1918 Digest of cases determined In the Suprem 3 1924 018 104 004 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018104004 DIGEST OF CASES DETERMINED IN THE SUPREME COURT OF CANADA COMPRISING, ALL THE CASES REPORTED IN VOLUMES 34 TO 54 OF THE OFFICIAL REPORTS, CAMERON'S SUPREME COURT CASES, COUTLEE'S SU>RtM%fe0TOJ[ CASES. AND CAMERON'S SUPREME COUR'T PRACTICE. COMPILED BY EDWARD ROBERT CAMERON ONE OF HIS MAJESTY'S COUNSEL REGISTRAR OP THE SUPREME COURT OF CANADA TORONTO: THE CARSWELL CO., LIMITED, 19 Duncan Street 1918 LONDON ; SWEET & MAXWKLL, LIMITED /^ 'tsji. Copyright: Canada, ]918, by The Carswell Co, Limited. PREFACE The last Digest of the Supreme Court was compiled by the late Ijouis William Coutlee, one of the Official Eeporters of the Court, and comprises the cases reported in volumes 34 to 40, inclusive, of the Official Reports'. Fourteen additional volumes have since been published and a digest of these later decisions has become a matter of necessity to the judges and officers of the Court as well as to the legal profession generally. It has been deemed advisable to have all the decisions of the Court contained in two volumes and the present work therefore com- prises all the cases reported in volumes 34 to 54 of the Official Reports. The general features of the previous digests have been followed except a Catch-word index .(Appendix A) has been prepared, which gives a reference to another title in the digest where the decision is more fully reported. There will be found in Appendix B an index to the Supreme Court decisions which have been carried to the Judicial Committee of the Privy Council since the publication of Coutlee's first digest in 1903. E. E. CAMEEON. Ottawa, September 1st, 1918. CONTENTS PAGE List of Chief Justices, Judges and Peinoipai< Officers . . vii. MeMOKANDUM of AbbEEVIATIONS used IK THE DiGEST ix. Digest of Cases 1 Appendix A 1261 Appendix B 1321 Index to Cases Digested 1337 CHIEF JUSTICES, JUDGES AND PEINCIPAL OFFICERS OF THE SUPEEME COUET OF CANADA SINCE 17th DECEMBEE, 1903. Chief Justices. Eight Honourable Sir Henri 'Elzear Tasehereau, Knight, appointed 21st November, 1902; resigned 2nd May, 1906. Eight Honourable Sir Charles Fitzpatriek, G.C.M.G., appointed 4th June, 1906 ; resigned 22nd October, 1918. Hon. Sir Louis Henry Davies, K.C.M.G., appointed puisne judge 25th September 1901; took oath of office as Chief Justice No- vember 4th, 1918. Judges. Hon. Eobert Sedgewick, appointed l&th February, 1893 ; died 4th August, 1906. Hon: Desire Girouard, appointed 28 fh September, 1895;- died 22nd March, 1911. Hon. Wallace Nesbitt, appointed 16th May, 1903 ; resigned 4th October, 1905. Hon. Albert Clements Killam, appointed 8th August, 1903; re- signed 6th February, 1905. Hon. John Idington, appointed 10th Februarj', 1905. Hon. James Maclennan, appointed 5th October, 1905 ; resigned 13th February, 1909. Hon. Lyman Poore Duff, appointed 27th September, 1906. Hon. Francis Alexander Anglin, appointed 26th February, 1909. Hon. Louis Philippe Brodeur, appointed 11th August, 1911. Hon. Pierre Basile Mignault, appointed 31st October, 1918. Registrar. Edward Eobert Cameron, K.C., appointed 2nd July, 1898. Laiv Reporters. Charles Harding Masters, K.C., appointed Assistant Law Eeporter 3rd March, 1886; appointed Chief Law Eeporter 2nd October, 1895. Louis WiUiam Coutlee, K.C., Civil Law Eeporter, appointed Assistant Law Eeporter 2nd December, 1895, died 3rd May, 1917. Armand Grenier, K.C., appointed Assistant Law Eeporter, 16th May, 1918. viii PEINCIPAL OFFICEES OF THE SUPEEME COUET. Librarians. Harris Harding Bligh, K.C., appointed 26th July, 1892, died 23nd August, 1918. Elzear Taschereau, LL.B., Advocate, joint Librarian, appointed 19th August, 1904. Sheriffs. John Sweetland, SherifE of the County of Carleton, ex-officio, from 11th December, 1879 ; died 5th May, 1907.' George Clarke Eichardson, Sheriff of the County of Carleton, ex- officio, from 28th September, 1907. ABBREVIATIONS USED IN THIS DIGEST A.C. or App. Cas Law Keports, House of Lords and Privy Council Appeal Cases. Art Article. B.O Sritish Columbia. B.N.A British North America. c, eh., or pap Chapter. C.U Civil Code of Lower Canada. C.C.P Code of Civil Procedure, Lower Canada (1867). Cf Compare ( Oonferre) . C.J Chief Justice. C.P.Q Code of Civil Procedure, Province of Quebec (1897) . C.P.R Canadian Pacific Railway. C.S'.C Consolidated Statutes of Canada. C.S.L.C Consolidated Statutes, Lower Canada. O.S.M Consolidated Statutes of Manitoba. C.S.U.C Consolidated Statutes, Upper Canada. Cam. Cas ..Cameron's Collection of Judgments in Supreme Court Cases (1905). Cam. S. O. Prac Cameron's Supreme Court Act, Rules and Practice Decisions (1907). Cam. Prac Cameron's Supreme Court Practice (2nd Ed) . Cam. S. C. Rules Cameron's Rules of the Supreme Ctourt of Canada (1907) . Can. Ry. Cas MacMurchy & Denison's Canadian Railway Cases. Can or (O.) Canada (1840-1867). Can. S.C.R Canada, Supreme Court Reports. Cass. Dig Cassels's Digest, Supreme Court Cases, 2nd edition (1893). Cass. Sup. Ct. Prac Cassels's Supreme Court Practice, 2nd edition, ; by Masters. Ch Chancery. Ch. App Law Reports, Chancery Appeals. Cb. D Law Reports, Chancery Division. Cout. Dig Coutlge's Digest, Supreme Court Cases (1903) . Gout. Cas Coutl6e's Collection of Unreported Cases in the Supreme Court of Canada (1907). (D.) Dominion of Canada. D.L.R Dominion Law Reports. DeG.M. & G DeGex, McN-aughton & Gordon's Reports. Div. Ct Divisional Court. Dor. Q.B Dorion, Queen's Bench Reports (Quebec) . Bast. L.R Eastern Law Reporter. E. & I House of Lords, English and Irish appeals. ed Edition. Ed. & Ord Edits & Ordonnanees (Lower Canada) . Ex. C.R Reports of the Exchequer Court of Canada. F. & F Poster & Finlayson's Reports. Gr Grant's Chancery Reports. G.T.R Grand Trunk Railway of Canada. H.L ." . . House of Lords. Imp Imperial. J Justice. JJ Justices. K.B King's Bench. L. C Lower Canada. L.C. Jur Lower Canada Jurist. L.O.R , Lower Canada Reports. L.R Law Reports (English) . Man Manitoba. X ABBEEVIATIONS USED IN THIS DIGEST. Man. L.R. or Man. K. . . . Manitoba I/aw Reports. Mast. S. C. Prac Masters's Practice of the Supreme Court of Canada (1907), Mer Merivale's Reports, Chancery. M.L.R. . Montreal Law Reports (Queen's Bench and Superior Court) . Mun. Code Que Municipal Code, Quebec. N.B New Brunswick. N.B. Rep New Brunswick Reports. N.W North- West. N.W.T. or N.W. Ter North- West Territories of Canada. N.W.T. Rep North- West Teritories Reports (Canada). N.S: Nova Scotia. . , N.S. Rep Nova Scotia Reports. U. or Ont Ontario.' Ont. App. R Ontario Appeal Reports. Ont. L.R Ontario Law Reports. Ont. P.R Ontario Practice Reports. O.W.N Ontario Weekly Notes. Ont. W.R Ontario Weekly Reporter. O.R Ontario Reports (Queen's Bench, Chancery and Common Pleas Divisions of the High Court of Justice for Ontario). O. S Upper Canada Reports, old series. P.D Probate, Divorce and Admiralty Division. P.E.I, .'f Prince Edward Island. Q., or Que Quebec. Q.B Queen's Bench. Q.L.R Quebec Law Reports. Q.P.R Quebec Practice Reports. Q.R. . .1 Official Reports, Province of Quebec. R. or Rep Reports (or Coke's Reports according to text). R.L Revue Legale. Rev. de Jur Revue de Jurisprudence (Quebec) . Rev. de Le^ Revue de Legislation (Quebec).. Rev. Ord. N.W.T Revised Ordinances, North- West Territories (1888). R.S.B.C Revised Statutes of British Columbia. R.S.C Revised Statutes of Canada (1886) . R.S.M Revised Statutes of Manitoba. R.S.N.B Revised Statutes of New Brunswick. R.S'.N.S Revised Statutes of Nova Scotia. R.S.O Revised Statutes of Ontario. R.S.Q Revised Statutes of Quebec. s. and ss Section, sections. s.-s Sub-section., S.C Superior Court. ser Series. Sim Simon's Reports, Chancery. U. C Upper Canada. U.C.C.P Upper Canada, Common Pleas Reports. Tf.C.Q.B Upper Canada, Queen's Bench Reports. , West. L.R Western Law Reporter. W.W.R Western Weekly Reports. Yuk Yukon Territory. ANALYTICAL DIGEST OF CASES IN THE SUPREME COURT OF CANADA DECISIONS OF THE COURT FROM OCTOBER, 1903, TO FEBRUARY, 1917 ; VOLUMES XXXIV. TO LIV. INCLUSIVELY ABANDONMENT. 1. Marine insurance ■ — Repairs — Boston clause — Findings of jury — New trial — Practice — Evidence taken by commission — Judicial discretion — Ins. Co. of North America v. McLeod, Cout. Cas. 214. 2. Sheriff — Cause of action — Execution of writ of attachment — Abandonment of seizure Cam. Cas. 78. See Attachment. See Insolvency. ABSTRACT. Vendor and purchaser — Sale of land — Con- dition dependent — Deferred payment — Dis- closure of title — Refusal to complete — Lapse of time — Defeasance — Specific performance. xlix., 14. Sec Vendor and Purchaser. ACCIDENT INSURANCE. See Insurance, Accident. ACCORD AND SATISFACTION. 1. Company — Sale of shares — Misrepresen- tation — Fraud — Action for deceit.] — G., a director in an industrial company, trans- ferred 290 shares of the icapital stock to the president to be sold for him. The president instructed an agent to sell said shares along with some of his jjwn and some belonging" to the company. The agent sold 25 shares of G.'s stock to J. G. representing, and believ- ing, that it was treasury stock, and getting a note for the price in favour of the com- pany. The note was indorsed over to G. Later J. G. discovered that the stock he had bought was not treasury stock, and had some correspondence with the secretary of the com- pany in which he complained of having been deceived by the agent. Eventually he gave a four months' note in renewal of that given for the price of the stock, but when it fell due, refused to pay it, the company having in the meantime become insolvent. In an ac- ■ tion on the renewal note he filed a counter- claim for damages based on the misrepresen- tation and deceit. Judgment' was given against him on the note and for him on the counterclaim : Held, that G. was responsible for the fraud practised on the purchaser of his shares by the misrepresentations of the agent who sold them. — Held, also, Girouard and Davies, JJ., dissenting, that the settle- ment of the claim for the price of the shares by giving the renewal note and thus obtain- ing further time for payment was not a re- leasp of the purchaser's right of action for deceit. Gooldv. Gillies, si., 437. 2. Company — Payment for shares — Transfer of business — Debt due partnership — 'Set-off — Counterclaim — Liability on sub- scription for shares. R. 8. B. C. c. 44, ss. 50, 51, xxxiv., 160. See Company. .5. Trust — Banking — Hypothecation of securities — Terms of pledge — Duty of pledgee, xli., 561. ' See Banks and Banking. 4. Municipal corporation — City and county — Separation — Agreement as to assets — Subsequent discovery of funds not included — Action for city's share. See Municipal Corporation. 5. Right of action — " Lord Campbell's Act " — Death by accident — Action by widow, xlix, 577. See Release. ACCOUNT. 1. Action for account^^Partition of estate -Requite civile — Amendment of pleadings — • S.C.D.- ACCOUNT. Supreme Court Act, sec. 83 — Order nunc pro tunc — Final or interlocutory judgment — Form of petition in revocation — Res judi- cata.] — ^On a reference to amend certain ac- counts already taken, a judgment rendered on 30th September, 1901, adjudicated on matters in issue between the parties, and on the ac- countant's report, homologated 25th October, 1901, judgment was ordered to be entered against the appellant for $26,136, on 30th January, 1902. The appellant filed a requite civile to revoke the latter judgments> within six months after it had been rendered, but without referring to the first judgment in the conclusions of tbe petition. It was ob- jected that the first judgment had the effect of res judicata as to the matters in dispute and was a final judgment inter partes : Held, that whether the first' judgment was final or merely interlocutory, the petition in re- location must be taken as impeaching botli former judgments relating to the accounts upon which it was based ; that it came in time if it had been filed within six months of the rendering of the said last judgment, and that if virtually raised anew all the is- sues relating to the taking of the accounts affected by the two former judgments. Hill V. Hill, xxxiv., 13. And see Eequete Oivhe. proper for the taking of accounts. Cairns V. Murray, xxxvii., 163. 3. , " Account stated " — Admission of lia- bility — Promise to pay — Collateral agree- ment-^-Parol ewdence. ]^On the dissolution of a partnership, the parties signed a state- ment shewing a' certain amount as due to the plaintiff for his share and declaring that " for the sake of peace and quiet and to avoid friction and bother," the plaintiff waived ex- amination on the firm's books,- and agreed that the amount so stated should be deemed to be the amount payable by the defendants to the plaintiff : Held, that a promise to pay the amount of the balance so stated to be due should be implied from the admission of liability. — In an action for the amount of the balance the defendants alleged that the plaintiff had verbally agreed that he would not sue upon the account as stated, and that tbe document should be treated as merely shewing what would be payable to him upon the collection of outstanding debts owing to the .firm : Held, that as the effect of the al- leged collateral agreements was to vary and annul the terms of the written instrument they could not be- proved by parol testimony. Jackson v. Drake, Jackson & Helmcken, xxxvii., 315. 2. Breach of trust — Accounts — Evidence —If ova Scotia " Trustee Act," 2 Edw. VII. c. IS — Liability of trustee — W. S. Order XXXII., r. 3 — Judicial discretion — Statute of Limitations. 1 — By his last will N. be- queathed shares of his estate to his daugh- ters A. and C, and appointed A. executrix and trustee. C. was weak-minded and in- firm and her share was directed to be in- vested for her benefit and the revenue paid to her half-yearly. A. proved the will, as- sumed the management of both shares, and also the support and care of C. at their com- mon domicile, and applied their joint in- comes to meet the general expenses. No de- tailed accounts were kept sufficient to com- ply with the terms of the trust or to show the' amounts necessarily expended for the support, care and attendance of C, but A. kept books which shewed the general house- hold expenses and consisted, principally, of admissions against her own interests. After the decease of A. and O. the plaintiffs ob- tained a reference to a master to ascertain the amount of the residue of the estate com- ing to C. (who survived A.) and the re- ceipts and expenditures by A. on account of C. On receiving the report, -the judge re- ferred it 'back to be varied, with further in- structions and a direction that the books kept by A. should be admitted as primd facie evi- dence of the matters therein contained. (See 37 N. B. Rep. pp. 452-464.)' This order was affirmed by the Supreme Court of Nova Scotia m banco : Held, aflirming the judgment appealed from (37 N. B. Rep. 451), that the allowances for such expenditures need not be restricted to amounts actually shewn to have been so expended ; that, under the Nova Scotia Statute, 2 Edw. VII. c. 13, and Or- der xxxii., rule 3, a Judge may exercise judicial discretion towards relieving a trustee from liability for technical breaches of trust and, for that purpose, may direct the admis- sion of any evidence which 'he may deem 4. Suretyship — Collateral deposit ■ — Ear- marked fund — Appropriation of proceeds — Set-off — Release of principal, debtor — Con- structive frau:d — Discharge of surety — Right of action — Common counts — Equitable re- course.'] — K. owed the corporation $33,- 527,94 on two judgments recovered on notes for $10,000 given by him to R., and a subse- quent loan to him and R. for $20,000. M., at the request of and for the accommodation of R., had endorsed the notes for $10,000 and deposited certain shares and deben- tures as collateral security on his endorse- ment. K. and R. deposited further collateral securities on negotiating the second loan, -but K. remained in ignorance of M.'s endorse- ments and collateral deposit until long after the release hereinafter mentioned. These judgments remained unsatisfied for over six years, but, in the meantime, the corporation had sold all the shares deposited as col- lateral security, and placed the money re- ceived for them to the credit of a suspense account, without making any distinction be- tween funds realized from M.'s shares and the proceeds of the other securities, and without making any appropriation of any of the funds towards either of the debts. On 28th February, 1900, after negotiations with K. to compromise the claims against him, the agent of the corporation wrote him a let- ter offering to compromise the whole indebt- edness for $15,000, provided payment was made some time in March or April, following. This offer was not acted upon until Novem- ber, 1901, when the corporation carried out the offer and received the $15,000, having a few days previously appropriated the funds in the suspense account, applying the pro- ceeds of M.'s shares to the credit of the notes he had endorsed. The negotiations and the final settlement with K. were not made known to JI., and K. was not informed of his con- tinuing liability towards M. as a surety. Held, per Sedgewick, Girouard, Davies and ACCOUNT. Idlngton, JJ. (reversing the judgment ap- pealed from (11 B. C. Rep. 402)), that the secret dealings by the corporation with K. and with respect to the debts and securities were, constructively, a fraud against both K. and M. ; that the release of the principal debtor discharged M. as surety, and that he was not entitled to recover the surplus of what the corporation received applicable to the notes endorsed by him as money had and received by the corporation to and for bis use. — Held, by Maclennan, J., that, on pro- per application of all the moneys received, the corporation had got more than sufficient to satisfy the amount for which M. was surety, and that the surplus received in ex- cess of what was due upon the notes was, in equity, received for the use of M. and could be recovered by him on equitable principles, or as money had and received in an action at law. Milne v. Yorkshire Guarantee Cor- poration, xxxvli., 331. 5. Statute of limitations — Agents or part- ners — Beference.~\ — By agreement between them, the Hamilton Brass Mfg. Co. was ap- pointed agent of the Barr Cash Co. for sale and lease of its. carriers in Canada at a price named for. manufacture ; net profits to be equally divided and quarterly returns to be furnished, either party having liberty to annul the contract for non-fulfilment of conditions. The agreement was in force for three years when the Barr Co. sued for an account, alleging failure to make proper re- turns and payments : HeM, reversing the judgment of the Court of Appeal, Girouard and Davies JJ. dissenting, that the accounts should be taken for the six years preceding the action only. — On a reference to the mas- ter, the taking of the accounts was brought down to a time at which defendants claimed that the contract was terminated by notice. The Court of Appeal ordered that they should be taken down to the date of the master's report : Held, that this was a matter of prac- tice and procedure as to which the Supreme Court would not entertain an appeal, Ham- ilton Brass Manufacturing Go. v. Barr Gash and Package Carrier Co., xxxviii., 216. 6. Appeal — Jurisdiction — Dihats de compte — Issue on reddition — Amount in con- troversy. — An action (taken in the Province of Quebec) was for an order directing the de- fendant to render an account and, in default of reddition, the plaintiff claimed .$1,000. By the judgment appealed from the reddition de compte was ordered and, in default of com- pliance with the order, the' defendant vfas condemned to pay the plaintiff the amount of $1,000 demanded. Held, that the contro- versy was limited to $1,000 and the Supreme Court of Canada had no jurisdiction to en- tertain an appeal. Bell v. Vipond (31 Can. S.C.R. 175) distinguished. S. Aubin v. Des- marteau, xliv., 470. 7. Sale of land — Principal and agent — ■ Secret profit by broker — Participation in breach of trust — Implied partnership — lAa- bility to account — Purchaser in good faith — Disclosure of suspicious circumstances — Gross-appeal— Parties — Practice. — C, being aware that B. was an agent for the sale of certain lands, entered into ah agree- ment with him for their purchase on joint account in his own name, upon the understanding that they should each be owpers of one.half of the lands and share profits equally upon a re-sale. B. transferred one-half of his interest to M., who gave valuable consideration therefor with know- ledge, at the time, of B.'s agency for the sale of the lands. Shortly after the conveyance of the lands by the owner, P., to C, they were re-sold to another person at a large profit, and P., having discovered the nature of the transactions, brought action against B., C. and M. to recover the amount of the profits which they had realized upon the re- sale of the lands. Held, affirming the judgment appealed from (3 Sa.sk. L.R. 417), Fitzpat- rick C. J. and Anglin J. dissenting, that the agreement between B. and C. was a partnersliip transaction ; that C. thereby became subject to the fiduciary relationship existing between B. and P. in respect of the sale of the property; that he was disqualified as a purchaser of the lands which were the subject-matter of B.'s agency, and that he was equally responsible with B. to account to P. for the profits realized from the re-sale of the property. In regard to M. it was held, also affirming the judgment appealed from, Idlngton J. dis- senting, that as the evidence did not shew that he was other than a bond, fide purchaser for valuable consideration he was under no obligation to account for profits realized upon the sale of the interest in the lands acquired by him under the transfer from' B. Coy v. Pommercnlse, xliv., 543. And see Bboker. 8. Construction of deed — Ambiguity — Dis- charge of debtor — Contract — Illegal consid- eration — Right of action, xxxvii., 613. See Deed. 9. Tenant by sufferance — Use and occupa- tion of lands — Art. X608 C. C. — Promise of sale — Vendor and purchaser — Reddition de compte — Actio ex vendito — Practice, xxxvii., 627. See Action. 10. Breach of contract — Breach of trust — Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Account — Evidence ■ — Salvage — Indem- nity for necessary expenses — Laches — Es- toppel, xxxviii., 198. See Trusts. 11. Officer of the crown — Forged cheques — Payment by bank — Representation by drawee — Implied guarantee — Estoppel — Ac- knowledgment of bank statements — Mistake, xxxviii., 258. See Banks and Banking. 12. Placer mining — Disputed title — Tres- pass pending litigation Colour of right — Invasion of claim — Adverse acts — Sinis- ter intention _ — Conversion — Blending ma- terials — Assessment of damages — Mitiga- ting circumstances — Compensation for neces- sary expenses — Estoppel — - Standing-by — Acquiescence, xxxviii., 516. See Mines and Mining. ACTION. 13. Executor and trustee — Moneys of testator — Sale iy executot — Under value — Jurisdiction of Probate Court, xxxix., 122. See Executors and Administrators. 14. Mandamus — Driving tiniber — Order to fix tolls — Past user of stream — Appeal — ■ B. S. O. (1897) c. 1J,2, s. IS, xi., 523. See Mandamus. 15. Assiffnment — Insolvency — Fraud — Right of action — Misdirection — New trial — Taking accounts — Practice, Cam. 0,as. 245. See New Trial. low — Varying minutes of judgment — Costs, xxxiv., 502. See Practice. And see Estoppel. 2. Municipal corporation — Assessment and taxes — Meetings of council — Court of Re- vision — Transaction of business outside limits of municipality, — Place of meeting — Revision of assessment rolls — By-laws — Sale for ar- rears of taxes — Construction of statute — Statutory relief — Estoppel — I/aches' — Limi- tation of action, xlv., 425. See Municipal Corporation. And see Estoppel. 16. Appeal — Special appeal — Matter in controversy — Discretionary order — Prac- tice, Cout. Cas. 382. See Appeal. 17. Contract — Delegation of payment — Revocation of authority. Bank of Ottawa v. Hood, xlii., 231. See Contract. 18. Shares in partnership business — As- sociating third persons — Ooodwill — Account- ing between partners — Art, 1853 C.C. Mar- wick V. Kerr, liii., 1. See Partnership. 19. Construction of statute — N.-W. Ter. Ord., 1898, c. SJf — Extra-judicial seizure — Chattel mortgage — Sale through bailiff — Excessive costs — Penalty — Waiver — " Bank Act," B.S.C. (1006) c. 29, s. 91 — Interest — Contract — Excessive charges — Settlement of account stated — Voluntary payment — Sur- charging and falsifying — Reduction of rate — Removal of mortgaged property — Negligence — Measure of damages, xliv., 473. See Chattel Mortgage. ACCRETION. 1. Construction of will — Usufruct — Substi- tution — Partition betiveen institutes — Vali- dating legislation — 60 Vict. c. 95 (Q.) — Con- struction of statute — Restraint of alienation — Interest of substitutes — Devise of property held by institute under partition — Devolution of corpus of estate en nature — Res judicata —Arts. 868, 9.'i8 C. C, xxxviii., 1. See Will. 2. Construction of ivill — Substitution — Trust — Death of grev4 — Partition — Appor- tionment in aliquot shares — Distribution of estate — Partial intestacy — Devolution, xlvii., 42. See Will. ACQUIESCENCE. 1. Appeal — Practice — Exceptions — Art. 1220 C. P. Q.— Motion to quash — River im- provements —Continuing damages — Contract — Protective works — Discretion of court be- ACTION. 1. Joinder of causes of action — Parties — Dcmande au pititoire — Specific performance of contract.'] — A demande au pititoire may be made in an action for the specific perform- ance of a contracf. (Leave to appeal to I'rivy Council refused) . Meloche v. D^guire, xxxiv., 24. And see Title to Land. 2. Vendor and purchaser — Misrepresenta- tion — Fraud — Erroi — Rescission of eon- tract — Option of party aggrieved ■ — • Action to rescind — Actio quantum minoris — Dam- ages — Warranty.} — An action will lie against the vendor to set aside the sale of real estate and to recover the purchase price on the ground of error and of latent defects, even, in the absence of fraud. — In such a case, the purchaser alone has the option of returning the property and recovering the price or of retaining the property and recovering a por- tion of the price paid ; he cannot be forced to content himself with the action quantum min- oris and damages merely, upon the pretext that the property Inight serve some of his purposes notwithstanding the dateut 'defects. — The action quantum minoris and for dam- ages does not apply to cases where contracts are voidable on the grounds of error or fraud, but only to cases of warranty against latent defects if the purchaser so elects, the only recourse in cases of error and fraud being by rescission under art. 1000 of the Civil Code. Pagnuello v. Choquette, xxxiv., 102. And see Vendor and Purchaser. 3. Contract — Condition precedent — Right of action.] — In a contract for the construc- tion of works, it was provided that the works should be fully completed at a certain time, and that no money should be payable to the contractors until ths whole of the works were completed. In an action by the con- tractors for the full amount of the contract price, the trial judge refused leave to amend the claim by adding a count for quantum meruit; he found the works were still incom- plete at the time of action, but entered judg- ment in favour of the plamtiBEs for a portion of the contract price with nine-t»ntl!s of the costs. The defendant alone appealed from this decision, and the trial court judgment was affirmed by the Court of Review: — Held, reversing the judgment appealed from, that, as the whole of the works had not been completed at the time of the institution of 9 ACTION. 10 the action, the condition precedent to pay- ment had not been accomplished and the plaintiffs had no right of action under the contract. Whiting v. Blondin, xxxiv., 453. 4. Title to land — Sea beaches — Servitude — Possession annale — Possessory action.] — The possession necessary to entitle a plain- tiff to maintain a possessory action must be continuous and uninterrupted, peaceable, pub- lic and as proprietor for the whole period of a year and a day immediately preceding the disturbance complained of. Couture v. Cou- ture, xxxiv., 716. 5. Cause of action — Submission to foreign Court — Jurisdiction — Waiver. ] ■ — Per Taschereau, C.J. — AVhere the whole cause of action arose in the North-West Ter- ritories, the ,Court of King's Bench of Mani- toba had no jurisdiction to entertain the ac- tion or to render the judgment appealed from in the case, and such want of jurisdiction could not be waived. Canadian Pacific Rail- way Co. V. Bpringdale, xxxv., 550. And see Constitutional Law. 6. Appeal — Jurisdiction — Pssessory ac- tion.] — Possessory actions invoke title to land in a secondary manner and, consequently, are appealable to the Supreme Court of Canada. Pinsonneault v. HSbert (13 Can. S. C. R. 450) ; Gauthier v. Masson (27 Can. S. C. R. 575 ; Cmmune de Berthier v. Denis (27 Can. S. C. E. 147) ; Biou v. Biou (28 Can. S'. C. R. 52) ; Couture Y. Couture (34 Can. S. C. R. 716) referred to. Cully v. Ferdais (30 Can. S. C. R. 330) ; The Emerald Phosphate Co. v. The Anglo-Continental Quano Works (21 Can. S. C. R. 422), and Davis v. Roy (33 Can. S. C. R. 345), distinguished. De- lisle V. Arcand, xxxvi., 23. 7. Railways — Farm crossings — Jurisdic- tion of Board of Railway Commissioners for Canada — Statutory contract — Railway Clauses Act of 1851 — Or and Trunk Railway Act, 1852 — " Railway Act, 1888 " — "Railway Act, 1903."] — ^Orders directing the establish- ment of farm crossings over railways subject to " The Railway Act, 1903 " are exclusively within the jurisdiction of the Board of Rail- way Commissioners for Canada. — The right claimed by the plaintiff's action, instituted in 1904, to have a farm crossing established and maintained by the railway company, cannot be enforced under the provisions of the Act, 16 Vict. ch. 37 (Can.), incorpor- ating the Grand Trunk Railway of Canada. — Judgment appealed from reversed, Iding- ton, J., dissenting in regard to damages and costs. Grand Trunk Railway v. Perrault, xxxvi., 671. 8. Railway aid — Municipal by-law — Condition precedent — Part performance-An- nulment of by-law — Right of action — Assign- ment of obligation — Notice — Signification upon debtor — Art. 1571 G. G.] — ^An action to annul a municipal by_law will lie although the obligation thereby incurred may be con- ditional and the condition has not been and may never be accomplished. — Where a re- solutive condition precedent to the payment of a bonus under a municipal by-law in aid of the construction and operation of a rail- way has not been fulfilled within the time limited on pain of forfeiture, an action will lie for the annulment of the by-law, at any time after default, notwithstanding that there may have been part performance of the obligation on the part of the railway com- pany and that a portion of the bonus may have been advanced to the company by the municipality. — In an action against an as- signee for a declaration that an obligation has been forfeited and ceased to be exigible, on account of default in the fulfilment of a resolutive condition, exception cannot b.; taken on the ground that there has been no signification of the assignment, as provided by article 1571 of the Civil Code of Lower Canada. The debtor may accept the assignee as creditor and the institution of llie action is sufficient notice of such acceptance. The Bank of Toronto v. The St. Lawrence Fire Jnsurayice Go. ([1903] A. C. 59), followed. City of -Sorel v. Quebec Southern Railway Co., xxxvi., 686. 9. Suretyship — Collateral deposit — Ear- marked fund — Appropriation of proceeds — Set-off — Release of principal debtor — Con- slructive fraud — Discharge of surety — Right of action — Common counts — Equitable re- course.] — K. owed the corporation $33,527.94 on two judgments recovered on notes for $10 000 given by him to R., and a subsequent loan to him and R. for $20,000. M., at the request of and for the accommodation of R., had indorsed the notes for $10,000 and de- posited certain shares and debentures as col- lateral security on his indorsement. K. and R. deposited further collateral securities on negotiating the second loan, but K. remained in ignorance of M.'s indorsements and col- lateral deposit until long after the release hereinafter mentioned. These judgments re- mained unsatisfied for over six years, but, in the meantime, the corporation had sold all the shares deposited as collateral security, and placed the money received for them to the credit of a suspense account, without making any distinction between funds real- ized from M.'s shares and the proceeds of the other securities, and without making any ap- propriation of the funds towards either of the debts. On 28th February, 1900, after negotiations with K., to compromise the claims against him, the agent of the corpora- tion wrote him a letter offering to compro- mise the whole indebtedness for $15,000, pro- vided payment was made some time in March or April following. This offer was not acted upon until November 1901, when the corpor- ation carried out the offer and received the $15,000, having a few days previously ap- propriated the funds in the suspense account, applying the proceeds of M.'s shares to the credit of the notes he had indorsed. The negotiations and the final settlement with K. were not made known to M., and K. was not informed of bis continuing liability towards M. as a surety. — Held, per Sedgewick, Gir- ouard, Davies and Idington, JJ. (reversing the judgment appealed from (11 B. C. Rep. 402)), that the secret dealings by the cor- poration with K. and with respect to the debts and securities were, constructively, a fraud against both K. and M. ; that the re- lease of the principal debtor discharged M. as surety, and that he was entitled to re- cover the surplus of what the corporation re- ceived applicable to the notes indorsed by 11 ACTION. 13 him as money had and received by the cor- poration to and for his use. — Held by Mae- lennan, J., that, on proper application of all the money received, the corpoi;ation had got more than sufficient to satisfy the amount for which M. was surety and that the sur- plus received in excess of what was due upon the notes was, in equity, received for the use of M., and could be recovered by him on equitable principles or as money had and re- ceived in an action at law. Milne v. Yorh- shire Guarantee Corporation, xxsvii., 331. 10. Promissory note — Deposit receipt — yotice — Demand for payment — Ac'tioH.'\ — In an action on au instrument in the follow- ing form : "$1,00. Edmundston, N.B., July 12th, 1899. Received from the Reverend N. P. Babineau the suni of twelve hundred dol- lars, for which I am responsible, with inter- est at the rate of seven per cent, per annum, upon production of this receipt and after three months' notice. Fred. LaForest." The court below held (37 N. B^ Rep. 156), that the plaintiff could recover as for a promissory note, and that a demand for immediate pay- ment made more than three months before the action was a sufficient notice. — Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the ap- peal. LaForest v. Baiineau, xxxvii., 521. 11. Cause of action — Limitation of actions — Contract — Foreign judgment — Yuhon Or- dinance, c. 31 of 1890 — Statute of James — Statute of Anne — Lex fori — Lex loci contrac- tus — Aisence of debtor.'] — ^Under the provi- sions of the Yukon Ordinance, e. 31, of 1890, the right to recover simple contract debts in the Territorial Court of Yukon Territory is absolutely barred after the expiration of six years from the date when the cause of ac- tion arose notwithstanding that the debtor has not been for that period resident within the jurisdiction of the court. Judgment ap- pealed from reversed. Girouard and Davies, JJ., dissenting. Butledge v. United States Savings and Loan Co., sxxvii., 546. 12. Tenant ty sufferance — Use and occu- pation of lands — Art. 1608 C. C. — Promise of sale — Vendor am,d purchaser — Beddition de compte — Actio ex vendito — Practice.'] — The action for the value of the use and occupa- tion of lands does not lie in a case where the occupation by sufferance was begun and con- tinued under a promise of sale ; in such a case the appropriate remedy would be by an action ex vendito or for reddition de compte. Cantin v. B4rube, zxxvii., 627. 13. Rivers and streams — Floating saw- logs — ■ Vsr of booms — Vis major — Sal- vage — Quantum meruit — Riparian rights.] — P. placed booms across a floatable river to hold logs at a place where he had erected a sawmill on land owned by him on the bank of the river. T. had a boom further up- stream for storing pulpwood. Au unusual freshet broke T.'s boom and brought a quan- tity of his wood down with the current into P.'s boom, where it was caught and held for some time, until removed by T., without causing any damage or expense to P. In an action by P. to recover salvage or the value of the use of his boom for the time during which T.'s wood had remained therein : — Held, reversing the judgment appealed from (Q. R. 14 K. B. 513), that as P. had no right of property in the waters of the river where he had placed his boom those waters were publici juris, notwithstanding the construc- tion of the boom ; that T.'s wood came there lawfully ; and that, as the service rendered in stopping the wood was involuntary and accidental, P. could recover nothing there- for. — Per Fitzpatrick, C.J. — There is no dif- ference between the laws of the Province of Quebec and those of England in respect to the rights of riparian owners to the waters of floatable streams flowing past their lands. Miner v. Oilmour (12 Moo. P. C. 131) re- ferred to. Tanquay v. Price, xxxvii., 657. 14. 2Htle to land — Ownership — Artificial watercourse — Canal banks — Trespass — Possessory action — Bornage — Practice.'] — The possessory action lies only in favour of persons in exclusive possession a titre de pro- priitaire. — In the present case, the bank of a canal had fallen in at a place adjoining lands belonging to D., and the projection thus formed had been, for some years, occupied by him. A. made an entry for the purpose of removing this obstruction, and re-building a retaining wall to support the bank. In a possessory action by D. — Held, that as the original boundary had become obliterated, the decision of the question of possession should be postponed until the limits of the canal bank had been re-established. Parent V. The Quebec North Shore Turnpike Road Trustees (.31 Can. S. C. R. 556), followed. Delisle v. Aroaud, xxxvii., 668. And see Title to Land, 15. 'Negligence — Na/vigation of inland waters — Collision — Government ships and vessels — " Public work " — " The Exchequer Court Act," s. 16 — Construction of statute — Bight of a<:tion.] — His Majesty's steam-tug " Champlain," while navigating the River St. Lawrence at some distance from a place where dredging was being carriefl on by the Government of Canada, and engaged in tow- ing an empty mud-scow, owned by the Gov- ernment, from the dumping ground back to the place where the dredging was being done, came in collision with the suppliant's steam barge, which was also navigating the river, and the barge sustained injuries : — Held, af- firming the judgment of the Exchequer Court of Canada, that there could be no recovery against the Crown for damages suffered in consequence of negligence of its officers or servants, as the injury had not been sus- tained on a public work within the meaning of the sixteenth section of the " Exchequer Court Act." Chambers v. 'Whitehaven Har- bour Commissioners ( [1899] 2 Q. B. 132) ; Hall V. Snowden, Hubbard & Go. ( [1899] 2 Q. B. 136) : Lowthv. Ibbotson ([1899] 1 Q. B. 1003) ; Farnell v. Bowman (12 App. Cas. 643) ; and The Attorney-General of the Straits Settlements v. "Weymss (13 App. Cas. 192), referred to. Paul v. The King, xxxviii., 126. 16. Trespass — Possession — Evidence — Expropriation — Railway.] — The casual use of land for pasturing cattle in common with other persons does not constitute an evidence of possession sufficient to maintain an action 13 ACTION. IJ- for trespass. Judgment appealed from (1 East. L. R. 524) reversed. Temisoouata Ry. Co. V. Clanr, xxxvlii., 230. And see Appeal. 17. Action for negligence — Practice — As- sessment of damages — Funeral expenses.'] — In an action by the father of a person whose death was occasioned by the negligence of the defendants, it was held that the plaintiff could not recover funeral and other expenses incurred, as damages in the action. Toronto Hy. Co. V. Mulvaney, xxxviii., 327. And see Negligence. 18. Title to land — Promise of sale — Entry in land-register — • Tenant iy sufferance — Squatter's rights — ■ Possession in good faith — Eviction — Possessory action — Compen- sation for improvements — Rents, issues and profits — Set-off — Tender of deed— Restric- tive conditions — Evidence — Commencement de preuve par 4orit — Pleading and practice — Arts. J, 11, JflZ, kn, 419, 1204, l^SS, 1476, 1478 0. (7.] — The appellants, plaintiffs, are the grantees of the lands in question, part of the Seigniory of Matap6diac, the former proprietors of which had an agent resident in the seigniory, who administered their af- fairs there. It had been customary on appli- cations by intending settlers for the purchase of their wild lands, for this agent to take memoranda of their names and permit them to enter upon the lands, and this was done in respect to the lots in question, and the applicants were allowed to hold possession and make improvements thereon without notice of any special conditions limiting the titles which might, subsequently, be granted to them by the owners. The defendants, respondents, acquired the rights of these ap- plicants and, when the plaintiffs tendered deeds of the said lots to them, they refused to accept them on the ground that conditions were inserted which had not been stipulated for at the time of the original entries upon the lots, and of which no notice had been given. In actions, au pStitoire, the defend- ants pleaded that their possession had been in good faith in expectation of eventually receiving titles without such restrictive con- ditions as were sought to be imposed, and that, in the event of eviction, they were en- titled to full coinpensation for the value of all necessary improvements made on the lands without deductions in respect of rents, issues and profits : Held, affirming the judg- ment appealed from (Q. R. 16 K. B. 127), the Chief Justice and Duff, J., dissenting, (1) that the memoranda made by the agent were commencements de preuve par icrit and, having been followed by possession of the lots, were equivalent to a binding promise of sale without unusual conditions in limitation of any titles which might be granted: (2) that the_ entries made upon the lands, the possession thereof held by the defendants and their auteurs and the works done by them thereon could not be held to be in bad faith, nor with knowledge of de- fective title : (3) that, under the circum- stances and, notwithstanding that the de- fendants had actual notice of prior title, the plaintiffs could not maintain actions au p titoire, although they might be entitled to declarations in confirmation of the deeds tendered, if approved, and to recover the price of the lots; and (4) that the defend- ants could not be evicted without compen- sation for the full value of the necessary and useful improvements so made upon the lands with the knowledge and consent of the agent, and subject to being retained by the proprietors, without any deductions in respect of the rents, issues and profits de- rivable from the lands. Price v. Neault (12 App. Cas. 110) followed ; Lajoie v. Dean (3 Dor. Q. B. 69) discussed. — Per Fitz- patrick, C.J. — Under article 412 of the Civil Code of Lower Canada, the good faith of a possessor of land is dependent upon a grant sufficient to convey real estate or transmit an interest therein. Saint Lawrence Ter- minal Co. V. HalU; St. Lawrence Terminal Co. y. Rioux, xxxix., 47. 19. Possessory action — Trouhle de posses- sion — • Right of action — Actio negatoria ser- vitutis — Trespass — Interference with water- course — Agreement as to use) — Expiration of license ty non-use — Tacit renewal ■ — • Cancellation of Agreement — Recourse 'for damages.] — A possessory action will not lie in a case where the trouile de possession did not occur in consequence of the exercise of an adverse claim of right or title to the lands in question, and is not of a perma- nent or recurrent nature. Davies and Iding- ton, JJ., dissenting were of opinion that, under the circumstances of the case, a' pos- sessory action would lie. — P. brought an action au possessoire against the company for interference with his rights in a stream, for damages and for an injunction against the commission or continuance of the acts complained of. On service of process, the com- pany ceased these acts, admitted the rights and title of P., alleged that they had so acted in the belief that a verbal agreement made with P. some years previously gave them permission to do so, that this license had never been cancelled, but was renewed from year to year and that, although the privilege had not been exercised by them during the two years immediately preceding the alleged trespass in 1904, it was then still subsisting and in force, and tendered $40 in compensation for any damage caused by their intcference with P.'s rights ; Held, reversing the judgment appealed from, Davies and Idington, J.J., dissenting, that, as there had been no formal cancellation of the verbal agreement or withdrawal of the license thereby given, it had to be regarded, not- withstanding non-user, as having been tacitly renewed, that it was still in force in 1904, at the time of the acts complained of, and that P. could not recover in the action as instituted. The Chief Justice, on his view of the evidence, dissented from the opinion that the agreement had been tacitly renewed for the year 1904. Chicoutimi Pulp Co. v. Price, xxxix., 81. And see Practice. 20. Constitutional law — Construction of statute — " Crown Procedure Act." R. 8. B. C. c. 57 — Duty of responsible ministers of the Crown — Refusal to submit petition ' of right — Tort — Right of action — Damages — Pleading — Practice — Withdrawal of case from jury— New trials-Costs.] — Under the provisions of the " Crown Procedure Act," 15 ACTION. 16 R. S. B. C. c. 57, an imperative duty is im- posed upon the Provincial Secretary to sub- mit petitions of right for the consideration of the Lieutenant-Governor within a reason- able time after presentation and failure to do so gives a right of action to recover damages. — ^After a decisive refusal to sub- mit the petition has been made, the right of action vests at once, and the fact that a submission was duly made after the insti- tution of the action is not an answer to the plaintiff's claim. — In a -case where it would be open to a jury to find that an actionable wrong had been suffered and to award dam- ages, the withdrawal of the case from the jury is improper and a new trial should be had. — The Supreme Court of Canada re- versed the judgment appealed from (12 B. 0. Kep. 476) , which had afiirmed the judg- ment at the trial withdrawing the case from the jury and dismissing the action and allow- ing the plaintiff his costs up to the time of service of the statement of defence, costs be- ing given against the defendant in all the courts and a new trial ordered. Davies and Maclennan, JJ., dissented and, taking the view that the refusal, though illegal, had not been made maliciously, considered that, on that issue, the plaintiff was entitled to nom- inal damages ; that, in other respects, the judgment appealed from should be afiirmed, and that there should be no costs allowed on the appeal to the Supreme Court of Canada. (Appeal to Privy Council dismissed, 9th July, 1908). Norton v. Fulton, Jxxxix., 202. 21. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — ■ Evidence — Presumption of ma- lice — Right of action.] — The reckless publi- cation of a report as to premises being haunted by a ghost raises a presumption of malice sufiicient to support an action for damages from depreciation in the value of the property, loss of rent and expenses in- curred in consequence of such publication. Barrett v. The Associated Newspapers (23 Times L. R. 666), distinguished. The judg- ment appealed from (16 Man. R. 619) was affirmed, the Chief Justice dissenting. Mani- toba Free Press Co. v. Nagy,' xxxi^., 340. 22. Champerty — ^Maintenance — Malicious motive — Cause of action — Costs of un- successful defence — Damages.] — A defend- ant against whom a lawsuit has been suc- cessfully prosecuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance of the suit by a third party who has not thereby been guilty of maliciously prosecuting unnecessary litiga- tion. Bradlaugh v. Newdegate (11 Q. B. D. 1), distinguished; Giegerich v. Fleutot (35 Can. S. C. R. 327) referred to. Judgment appealed from (12 B. C. Rep. 272) affirmed. Newswander v. Giegerich, xxxix., 354. 23. Municipal corporation — Illegal expen- diture — Action hy ratepayer — Intervention of Attorney-General — Validating Act — Right of appeal.]~'Pv\ov to the passing of the Act of the Legislature of Nova Scotia, 7 Edw. VII. c. 61, the City Council of Halifax had no authority to pay the expenses of the mayor in attending a convention of the Union of Canadian Municipalities. — Where a municipal council illegally pays away money of the municipality, an action to re- cover it back may, if the council refuses to allow its name to be used, be brought by a ratepayer suing on behalf of all the rate- payers and need not be in the name of the Attorney-General. — Pending such an action the legislature passed an Act authorizing payment by the council of any sums for principal, interest and costs incurred by the defendant " in the event of the judgment being finally recovered by the plaintiff." — Held, per Fitzpatrick, C.J., and Maclennan, J., that the meaning of the words quoted was that the action might proceed to a finality including any competent appeal, and that they did not put an end to the appeal to this court. — Per Fitzpatrick, C.J., and Mac- lennan, J. — Quwre. Should not the action have been brought on behalf of all the rate- payers and inhabitants of the municipality? Judgment appealed from (41 N. S. Rep. 351) affirmed. Macllreith v. Hart, xxxix., 657. 24. Tramway — Contract with municipal- ity — Limited tickets — Specific performance — Injunction — Right of action — Parties.] — The injunction granted by the judgment of Street, J. (8 Ont. L. R. 642), affirmed by the Court of Appeal for Ontario (10 Ont. L. R. 594), was affirrned by the Supreme Court of Canada for the reasons given in the courts below. The order by Street, J., restrained the_ company from operating tramcars in which they did not provide " workmen's tickets " good for passenger fares during cer- tain fixed hours of each day in virtue of an agreement with the city. The Court of Ap- peal held that the agreement was intra vires, that the company were obliged to provide such tickets, that it -{vas not necessary to make the Attorney-General a party to the action, and that specific performance could be enforced by injunction. Hamilton Street Railway Co. v. City of Hamilton, xxxix., 673. 25. Railway aid — Provincial subsidy — Construction of statute — 60 Viet. c. 4, s. 12 (Que.)— 54 Vict. c. 88, s. Ij (Que.) — Breach of conditions — Compromise by Crovm officers — Obligation binding on the Crown — Right of action — Extension of railway — Ap- plication of subsidy. ] The suppliants claimed that by the Quebec statutes, 54 Vict. c. 88, and 60 Vict. c. 4, a balance was due them nil subsidy in aid of the Bale des Chaleurs Railway, that the subsidy was attributable to the first 80 miles from Metapfedia towards Gasp6 Basin, that such subsidy was subject only to the conditions in the second part of s. s. _lj of the Act 54 Vict., and that the Provincial Government was bound by the terms of a transaction with the Lieutenant- Governor in Council compromising for the land subsidy at a rate per acre in cash. The Supreme Court affirmed the judgment ap- pealed from (Q. R. 15 K. B. 320), dismiss- ing the petition of right and holding that the subsidy applied to the 80 miles termin- ating at or near Gaspfi Basin, and that the construction placed on the statutes by of- ficers_ of the Crown in effecting the com- promise and part payment in money, gave the suppliants no right of action against the 17 ACTION. 18 Crown for the balance claimed by them. DeOalindex et al. v. The King, xxxix., 682. 26. Rivers and streams — Grown domain — Title to land — " Plottage " — Driving loose logs — Pullio servitude — Riparian ownership — 'Action possessoire — Arts. 400, 50S, 507, S192 C. G.—Art. 1064 G. P. Q. ]— In the Province of Quebec, watercourses which are capable merely of floating loose logs {Hot- taUes A Mches perdues), are not dependen- cies of the Crown domain within the mean- ing of article 400 of the Civil Code. The owners of the adjoining riparian lands are, consequently, the proprietors of the banks and beds of such streams and have the right of action a« possessoire in respect thereof. Judgment appealed from (Q. R. 16 K. B. 48) affirmed, Girouard and Idington, JJ., dis- senting. Tanguay v. Ganadian Electric Light Co., xl., 1. And see Rivers and Streams. 27. Malicious prosecution — Reasonahle and proiaile cause — Bond fide belief in guilt — Burden of proof — Right of action for dam- ages — Art. 1053 O. G. — Pleading and prac- tice.'] — An action for damages for malicious prosecution will not lie where it appears that the circumstances under which the in- formation was laid were such that the party prosecuting entertained a reasonable land fide belief, based upon full conviction founded upon reasonable grounds, that the accused was guilty of the offence charged. Ahrath v. North Eastern Railway Go. (11 App. Cas. 247) and Gox v. English, Scottish and Australian Bank ([1905] A. C. 16§) referred to. — Semble, that, in such cases, the rule as to the burden of proof in the Pro- vince of Quebec is the same as that under the law of England, and th« plaintiff is obliged to allege and prove that the prose- cutor acted with malicious intentions or, at least, with indiscretion or reprehensible want of consideration. Bharpe v. Willis (Q. R. 29 S. C. 14: 11 Rev. de Jur. 538) and Durocher v Bradford (13 R. L. [N.S.] 73) disapproved. — Judgment appealed from (Q. R. 16 K. B. 333) affirmed. EHu v. Ditcville Butter and Gheese Association, xl., 128. 28. Negligence of fellow-servant — Opera- tion of railway — Defective switch — Public work — Tort — Liability of Grown — Right of action — Exchequer Court Act. s. 16 (c) — Lord GampbelVs Act — Art. 1056 G. 0.]— In consequence of a broken switch, at a siding on the Intercolonial Railway (a public work of Canada), failing to work properly, although the moving of the crank by the pointsman had the effect of changing the sig- nal so as to indicate that the line was pro- perly set for an approaching train, an acci- dent occurred by which the locomotive engine was wrecked and the engine-driver killed. In an action to recover damages from- the Crown, under article 1056 of the Civil 'Code of Lower Canada : Held, affirming the judg_ ment appealed from (11 Ex. C R. 119), that there was such negligence on the part of the officers and servants of the Crown as rendered it liable in an action in tort ; that the " Exchequer Court Act," 50 & 51 Viet. c. 16, s. 16 (c), imposed liability upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court of Canada to en- tertain the claim for damages ; and that the defence that deceased, having obtained satis- faction or indemnity within the meaning of article 1056 of the Civil Code, by reason of the annual cc»ntribution made by the Rail- way Department towards The Intercolonial Railway Employees' Relief and Insurance Association, of which deceased was a mem- ber, was not an answer to the action. Miller V. The Grand Trunk Railway Go. ([1906] A. C. 187) followed. [Leave to appeal to Privy Council was refused : 18th July, 1908.] The King v. Armstrong, xl., 229. 29. Company — Paid-up shares — Sale by broker — Prospectus — Misrepresentations — Rescission — Delay — Liability of directors.] — P. in June, 1903, purchased paid-up shares in the capital stock of an industrial company on the faith of statements in a prospectus prepared by a broker employed to sell them. In January, 1904, he attended a meeting of shareholders and from something he heard there suspected that some of said statements were untrue. After investigation he de- manded back his money from the broker and wrote to the president and secretary of the company repudiating his purchase. At subsequent meetings of shareholders he re- peated such repudiation and demand for repayment, and in December, 1904, brought suit for rescission : Held, that his delay, from January to December, 1904, in bring- ing suit was not a bar and he was entitled to recover against the company. — Held, also, that he could not recover against the direc- tors who had instructed the broker to sell the shares as they were not responsible for the misrepresentations in the prospectus. — Judgment of the Supreme Court of New Brunswick (38 N. B. Rep. 364), affirming the decision at the hearing (3 N. B. Eq. 508) reversed. FarrcU v. Manchester, xl., 339. 30. Banks and banking — Forged cheque — Negligence — Responsibility of drawee — Pay- ment — Mistake — Indorsement — Implied warranty — Principal and agent — Money had and received — Change in position — Laches. [ — A cheque for $6, drawn on the plaintiff, was fraudulently altered by changing the date and the name of the payee, and by raising the amount to $1,000. The drawee refused payment for want of identification of the person who presented it. The defendant bank, without requiring identification, ad- vanced $25 in cash to the forger on the forged cheque, placed the balance, $975, to his credit in a deposit account, indorsed it and received the full amount of $1,000 from the drawee. After receipt of this amount, the defendant paid the further sum of $800 to the forger out of the amount so placed to the credit of his deposit account. The fraud was discovered a few days later and, on its refusal to refund the money it had thus re- ceived, the action was brought to recover it back from the defendant as indorser, or as having received money paid under mistake of fact: Held, that the drawee of the cheque, although obliged to know the signa- ture of its customer, was not under a similar obligation in regard to the writing in the body of the cheque : that, as the receiving bank had dealt with the drawee as a princi- pal and not merely as the agent for the col- 19 ACTION. 20 lection of the cheque and had obtained pay- ment thereof as indorser and holder in due course, it was liable towards the drawee which had, through the negligence of the re- ceiving bank, been deceived in respect to the genuineness of the body of the cheque, and that the drawee was entitled to recover back the money which it had thus paid under a mistake of fact, notwithstanding that, after such payment, the position of the defendant had been changed by paying over part of the money to the forger. The Banh of Montreal V. The Kinft (38 Can. S. C. R. 258) distin- guished. Newall V. Tomlinson (L. R. 6 C. P. 405) ; Durrani v. The Ecclesiastical Com- missioners for England, and, Wales (6 Q. B. D. 234) ; The Continental Caoutchouc and Gutta Peroha Co. v. Kleinwort, Sons & Co. (20 Times L. K. 403), and Kleinwort, Sons & Go. V. The Dunlop Rulher Go. (23 Times L. R. 69f>), followed. — Judgment appealed from (17 Man, R. 68), affirmed, Idington, J., dissenting. Dominion Bank v. Union Bank of Canada, xl., 366. 31. Damages — Trespass — Cutting timber — • Sale to tona fide purchaser — Action ty owner of land.l — F. conveyed land to his wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to G., who bought in good faith and sold to another bond, fide purchaser. In an action by F.'s wife against the two purchasers, the money was paid into court and an interpleader issue granted to decide which of the claimants, the plaintiff or G., was entitled to have it : Meld, affirm- ing the judgment of the Court of Appeal (16 Ont. L. R. 123), which reversed the decision of the Divisional Court (14 Ont. L. R. 160), that the plaintiff was entitled to the whole sum. Duff, J., expressed no opinion on the question. — JJeld, also, Idington, J., duiitante, and Duff, J., dissenting, that if necessary the writ and interpleader order could be amended by adding F. as a co-plaintifE with his wife. Greer v. Faulkner, xl., 399. 32. Builders and contractors — Responsi- hiUty for faults in construction — Laitent de- fect — Installations in constructed building — " Automatic Sprinkler System " — Datnages by flooding-— Injury sustained by subsequent purchaser — Right of action — Assessment of damages — Expertise.} — The (plaintiff's auteur employed the defendant to install an " automatic sprinkler " in his building (sub- sequently .sold to plaintiff) and, in executing the work, the defendant made insufficient con- nections with the city water-mains by means of a pipe already existing in the building. As the result of this fault in construction, the pipes became disjointed and the plain- tiff's goods, consisting largely of cases con- taining wines in labelled bottles, were dam- aged. The plaintiff notified defendant that he would hold himi liable for the damages thus sustained and requested him to attend at an expert valuation to be made by fire insurance adjusters and valuators, but plain- tiff disregarded the notification and did not attend. The experts assessed the damages, in the manner usually adopted in similar cases of damages caused by fire, at $3,397.11, and the plaintiff's action was for this amount with amounts added for expenses incurred in repairs to the pipes, fees to the experts and foi expenses of protest. The judgment appealed from (Q. R. 17 K. B. 449) af- firmed the trial judgment (14 R. L. [N.S.] 172) maintaining the action, and held that, under arts. 1055, 1688 and 1696 0. C, the contractor was responsible for the damages sustained, that the subsequent purchaser had a right of action against him, as he was the person injured through the latent defects in construction, that the method of assessing damages adopted was a proper mode to fol- low under the circumstances, and that the repairs, experts' fees and costs of protest were items of damages which could properly be recovered in the action. This decision was affirmed by the Supreme Court, on appeal, Davies, J. dubitante, for the. reasons given by Tellier, J., at the trial, and Boss6 and Trenbolme. JJ., in the court appealed from. Macguire v. Eraser., xl., 577. 33. Waterworks — Statutory contract — Exclusive franchise — Condition of defeasance — Forfeiture of monopoly ■ — ■ Demurrer — Right of action by municipality — Rescis- sion — Art. 1065 C. G. — 40 Vict. c. 68 (Que.,).] — By the Quebec statute, 40 Vict, ch. 68, Louis MoUeur and others, now repre- sented by the defendants, were substituted as sole owners of the waterworks of St. John's in the place of " The Waterworks Co. of St. John's," incorporated under R. S. C. (1859) ch. 65, charged with all the obli- gations and responsibilities of said company, and, by the ssid Act, 40 Vict. ch. 68, the new proprietors were granted the exclusive right and privilege of placing pipes or water conduits under the streets and squares of the Town of St. John's (now the City of St. John's the appellant) , under certain other conditions and obligations in the last mentioned statute recited, and the monopoly created was, by section 3, liable to be for- feited in case of neglect and refusal in dis- charging the obligations thereby imposed. — Held, that the contract existing between the parties, in virtue of the above recited stat- utes, was liable to rescission under the pro- visions of the 1065th article pf the Civil Code of Lower Canada, upon default in the specific performance by the defendants of the obligations thereby imposed, and that, upon proof of default in the specific perform- ance of any of the said obligations, the muni- cipal corporation was entitled to maintain an action in its corporate capacity to have the exclusive right and privilege granted by the statute declared forfeited, surrendered and annulled. — The judgment appealed from (Q. B. 16 K. B. 559) deciding that the action would lie only for breach of obliga- tions expressly declared to involve forfeiture, was reversed, Davies, J., dissenting. Ville de St. Jean v. Molleur, xl., 629. 34. Municipal corporation — - Highway — Snow cleaning — Care of streets — Bad repair — Loss of profits to omnibus line — Negli- gence ■ — flight of action — Damages.'} — W. was the proprietor of an omnibus line plying in certain streets of the City of Halifax during the winter of 1881-2, under a license from the city. About the 10th January the snow fell very heavily, and by about the 20th, owing to the snow being thrown from the sidewalks into the street, the roadway became filled with pitch holes, some of which 21 ACTION. 23 were four feet deep. Other severe snow storms through the winter aggravated the condition of the road. The plaintiff alleged that, by reason of this bad repair of the highway, he had suffered damages to a large amount by the wrecking of his carriages, straining of his horses, breaking of harness, etc., and loss of profits through the diminu- tion in trafiBc on his 'bus line. Plaintiff complained to the city authorities, asking that men be put to work to level the snow between the sidewalks, but his request was refuised. The action was tried before Mc- Donald, C.J., and a jury, when a verdict for the plaintiff foi $600 damages was found. The defendants obtained a rule to set aside the verdict, and for a new trial, which, after argument, was discharged by the Supreme Court of Nova Scotia (16 N. S. Rep. 371). On appeal to the Supreme Court of Canada : Held, the Chief Justice and Gwynne, J., dis- senting, that the judgment of the court be- low should be affirmed and the appeal dis- missed with costs. — Per Strong, J. — Under the Act incorporating the defendants and subsequent Acts amending the same, not only were the defendants liable to indictment for breach of their public duties in respect of the matters complained of, but the plain- tiff could also maintain an action as a per- son especially injured thereby. — The evidence was amply sufBcient to warrant the trial judge in leaving the case to the jury, and, the condition of the street being one which might have been remedied by levelling the hillocks which had been formed, and which caused the damage the respondent com- plained of, the verdict should be upheld. — The loss of profits claimed was not too re- mote, but was quite as much an immediate and natural cause of the injury as was the loss of custom in Lancashire <& Yorkshire By. Co. V. Gidlow (L. E.. 7 H. L. 517.) — Per Henry, J. — The City of Halifax was liable for the negligence of the street com- missioners although they were appointed by the city r.ouncil and not by the Court of General Sessions as provided by R. S. N. S. (4 ser.) 0. 49. City of Halifax v. Walker (Cout. Dig, 594, 978), Cam. Cas. 569. 35. Tfegligence — Tort — LiaMlity of the Crown — Demise of the Groicn — Personal action -- Release — Operation of railway — Common employment — Exchequer Court Act, 50 & 51 V. c. 16, s. 16 (c).] — Under sub-sec. (f ) of see. 16 of the " Exchequer Court Act" (50 & 51 Viet. cb. 16), an action in tort will lie against the Crown, re- presented by the Government of Canada. Under the Civil Code of Lower Canada, in case of drath by negligence of servants of the Crown, an action for damages may be main- tained by the widow of the deceased. on be- half of herself and her children. The action of the widfvw is not barred by her acceptance of the amount of a policy of insurance on the life of deceased from the Intercolonial Railway Employees' Relief and Insurance Association, under the constitution, rules and regulations of which the Crown is de- clared to be released from liability to make compensation for injuries to or death of any member nf the association. Miller v. G-rand Trunk Railway Co. ((1906) A.C. 187) fol- lowed. The right of action for compensa- tion for injury or death by negligence of Government employees does not abate on de- mise of the Crown. Viscount Canterbury v. The Queen (12 D.J. ch. 281) referred to The king v. Desrosiers, xli., 71. And see Negligence. 36. Appeal — Actio Pauliana — Controversy involved — Title io land — R. 8. G. [1906] c. 139, s. Jfi. In the Province of Quebec, the actio Pauliana, though brought to set aside a contract for sale of an immovable, is a personal action and does not relate to a title to lands so as to give a right of appeal to the Supreme Court of Canada. Lamothe V. Daveluy, xli., 80. 37. Sale of stock — Evidence of title -^ Duty of vendor — Defective certifiaate.] — When shares in the stock of a company are sold for cash and a certificate delivered with a form' of transfer indorsed purporting to be signed by the holder named therein who is not the seller, the latter must be taken to affirm that a title which will enable the purr chaser to become the legal holder is vested in him by virtue of such certificate and transfer. A transfer was signed by the wife of the holder at his direction but not acted upon until after his death. Held, that the authority of the wife to deal with the cer- tificate was revoked by the holder's death and on a cash sale of the shares the pur- chaser who received 'the certificate and trans- fer so signed being unable, under the com- pany's rules, to be registered as holder had a right of action to recover back the pur- chase money from the seller. The fact that the purchaser endeavoured to have himself registered as holder of the shares was not an acceptance by him of the contract of sale which deprived him' of his right of action to have it rescinded. Nor was his action barred by loss of the defective certificate by no fault of his nor of the seller. Judgment appealed from (13 B. C. Rep. 351) reversed, Gastle- man v. Waghorn, Gwyn <& Co., xli., 88. 38. Damages — Denial of trafp-e facilities — Injury iy reason of operation of railway — Limitation of actions — " Railway Act," 3 Edw. VIL c. 58, s. Si2 — Construction of statute.] — Injuries suffered through the re- fusal by a railway company to furnish rea- sonable and proper facilities for receiving, forwarding and delivering freight, as re- quired by the " Railway Act," to and from a shipper's warehouse, by means of a private spur-track connecting with the railway, do not fall within the classes of injuries de- scribed as resulting from the construction or operation of the railway, in sec. 242 of the "Railway Act," 3 Edw. VII. ch. 58, and, consequently, an action to recover dam- ages therefor is not barred by the limitation prescribed by that section for the commence- ment of actions and suits for indemnity. — Judgment appealed from (19 Man. R. 300) affirmed. Girouard and Davies, JJ., dissent- ing. Canadian Northern Railway Go. V. Robinson, xliii., 387. 39. Construction of contract — Condition precedent — Arbitration and award — Right of action.] — A contract for the sale of timber limits contained a guarantee by the vendor that the quantity of timber thereon at the time of the sale would prove equal to that 23 ACTIOK. 24 shewn in a statement annexed and a cove- nant that he would re-pay to the purchasers the amount of any shortage found in pro- portion to the price at which the sale was made. In another clause, provision for arbi- tration was made in case of dispute as to the amount of any such shortage but it did not in express terms deprive the purchaser of the right to recover any claim for short- age until after an award had been obtained : — Held, affirming the judgment appealed from (15 B. C. Rep. 70), Idington, J., dis- senting, that an award by arbitrators had not been made a condition precedent to re- covery for the amount of any deficiency in the quantity of timber guaranteed to be upon the limits. David v. Swift, xliv., 179.- 40. Industrial improvements — Raising height of dam — Nuisance — Damages — Ex- pertise and arbitration — Right of action — Condition precedent — Pleading — "New objec- tions on appeal — Prescription — Arts. 22Ji2, 2261 G. 0.1 — The mode of ascertainment of damages by the arbitration of experts pro- vided by article 5536 of the Revised Statutes of Quebec, 1888, does not exclude the right of action to recover compensation in the courts. — In such cases the measure of dam- ages is the amount of compensation for in- juries sustained up to the time of the ac- tion ; they ought not to be assessed once for all, en bloc, but recourse may be reserved in regard to future damages arising from the same cause. — Per Idington and Anglin, JJ. — ^Objections based upon provisions of en- abling statutes which have not been set up in the pleadings nor relied upon iri the courts below cannot be entertained upon an appeal to the Supreme Court of Canada. Hamelin v. Bannerman (31 Can. S. C. R. 534) , followed. — Per Anglin, J. — An action, brought in 1908, for recovery of damages in respect of injuries occasioned by improve- ments executed in 1904, upon works con- structed many years before tlat time, is not subject to the prescription of thirty years ; nor can the prescription provided by artide 2261 of the Civil Code be applied where the action has been commenced within two years from the time the injuries complained of were sustained. Gale v. Bureau,, xliv., 305. And see Rivers and Streams. 41. Vendor and purchaser — Condition oj agreement — SoJe of land — Payment on ac- count of price — Cancellation — 'Notice — Re- turn of money paid — Rescission — Form of action — Practice.} — ^An agreement for the sale of lands acknowledged receipt of $600 on account of the price and provided, in the event of default in the payment of deferred instalments, that the vendor might, on giv- ing a certain notice, declare the agreement null and void and retain the moneys paid by the purchaser. On default by the pur- chaser to make payments according to the terms of the agreement the vendor served him with a notice for cancellation, which in- correctly recited that the contract contained a stipulation for its cancellation, in case of default, " without notice," and concluded by declaring the contract null and void " in accordance with the terms thereof as above recited." The vendor, subsequently, refused a tender of the unpaid balance of the price and re-entered into possession of the lands. In an action by the purchaser for specific performance or the return of the amount paid, rescission was not asked for : — Held, that, as the vendor had not given the notice required by the conditions of the agreement he could not retain the money as forfeited on account of the purchaser's default ; that, as the payment had not been made as ear- nest, but on account of the price, the pur- chaser was entitled to recover it back on the cancellation of the contract, and that, as the relief sought by the action could not be granted while the contract subsisted, a demand for rescission must necessarily be implied from the plaintiff's claim for the return of the money so paid. March Bros. & Wells v. Banton, xiv., 338. 42. Mining Act — Grant of mining land — Reservation of pine timber— Right of grantee to cut for special purposes — Trespass — Cut- ting pine — Right of action.^ — The Ontario Mining Act, R. S. O., [1897] ch. 36, as amended by 62 Vict. ch. 10, sec. 10, pro- vides in sec. 39, sub-sec. 1, that " the patents for all Crown lands sold or granted as min- ing lands shall contain a reservation of all pine trees standing or being on the lands, which pine trees shall continue to be the property of Her Majesty, and any person holding a license to cut timber or saw logs on such lands may at all times, during the continuance of the license, enter upon the lands and cut and remove such trees and make all necessary roads for tiat purpose." By the other provisions of the section, the patentee may cut and use pine required for necessary building, fencing and fuel and other mining purposes and remove and dis- pose of what is required to clear the land for cultivation, but for any cut except for such building, fencing and other mining pur- poses he shall pay Crown dues. — Held, Id- ington and Duff, JJ., dissenting, that a patentee and a lessee of mining lands who had taken possession thereof, but were not at the time of the trespasses complained of in actual physical possession, have, notwith- standing such reservation, or exception, such possession of the pine trees, or such an in- terest therein, as would entitle them to main- tain actions against a trespasser cutting and removing them from the land. Glenmood Lumber Co. v. Phillips ([1904] A. C. 405), followed ; Gasselman v. Hersey (32 U. C. Q. B. 333), discussed. — In this case the de- fendants cut and removed the pine timber from plainitfifs' mining lands without license from the Crown, but claimed that they sub- sequently acquired the Crown's title to it and should be regarded as licensees from the beginning. — Held, Idington and Duff, JJ., dissenting, that assuming that the Crown could after the trees had been cut and re- moved, take away by its act the plam tiffs' vested right of action the evidence shewed that defendants were cutting on adjoining Crown land as well as on plaintiffs' loca- tions and did not clearly establish that any title acquired by defendants included what was cut on the latter. National Trust Co., Ltd. V. Miller, xlvi., 45. 43. Appeal — Final judgment — Reference.'] — In an action claiming rescission of a con- tract for the sale of timber lands and other 25 ACTION. 26 equitable relief and, in the alternative, dam- ages for deceit, the trial Judge held that it was a case for damages only and gave judg- ment accordingly and referred to a referee matters arising out of a counterclaim order- ing him also to take an account of moneys paid, an inquiry as to liens and incumbrances and as to the quantity of standing timber on the lands and other proper accounts; Further consideration of the cause was reserved. This judgment was affirmed by the full court and the defendants sought to appeal to the Supreme Court of Canada. — Held, that the action tried and determined was the common law action for deceit only ; that the judg- ment given therein was not a final judgment within the meaning of that term in the "Su- preme Court Act" ; and that the court had no jurisdictioDi to entertain the appeal. Clarke v. Goodall (44 Can. S. C. R. 284), and Crown Life Ins. Co. v. Skinner (44 Can. S. C. R. 616), followed. Dunn v. Eaton, xlvii;, 205. 44. Public officer — 'Notice — Notary public — Principal and agent — Mandate — Pleadings — Practice — New objections on appeal — Case on appeal — Notes of reasons by judges — Findings of fact— Art. 88 C. P. Q.] — If a defendant has not, in the courts below, taken exception to want of notice of action, as required by article 88 of the Code of Civil Procedure of Quebec, it is doubtful whether the objection can be urged on an appeal to the Supreme Court of Canada. Devine v. Holloway (14 Moo. P. C. 290), referred to. — Where the defendant has not been sued in an action for damages by rea- son of an act done in the exercise of a pub- lic function or duty, the provision of article 88 C. P. Q., as to notice of action against a public officer, has no application. — The Su- preme Court of Canada ought not, in ordin- ary cases, to take into consideration the notes of reasons for judgments in the courts below which have not been delivered before the settling of the case on the appeal : May- hew V. Stone (26 Can. S. C. R. 58), fol- lowed. In a proper case, iowever, when the non-delivery of such notes is satisfactorily accounted for, the court may permit them to be filed and made use of as part of the record on the appeal : Canadian Fire Insur- ance Co. V. Robinson (Cout. Dig. 1105), re- ferred to. The court refused to reverse the concurrent findings of fact by the courts below. Diif resile v. Desforges, xlvii., 382. 45. Damages — Timber on pre-empted lands — Rights of pre-emptor — B. C. " Land Act,'' R. S. B. C. 1911, c. 129, ss- 77 et seq. and 132,] — A pre-emptor of Crown lands, under the provisions of the British Colum- bia " Land Act," R. S. 0. 1911, ch. 129, who has not forfeited his rights, is entitled to maintain an action for such damages as he has sustained in consequence of the destruc- tion of timber growing upon his pre-empted lands. Canadian Pacific Railway Co. v. Kerr, xlix., 33. And see Practice and Procedtjee. . 46. Sale of lands — Agreement to pay com- mission — Named price — Introduction by agent — -General retainer — Sale at lower price — Right of action — Alberta statute, 6 Edw. VII., c. 27, s. i.]— The Alberta statute. 6 Edw. VII., ch. 27, respecting sales of real estate, denies recovery by action, for ser- vices rendered in connection with such sales by way of commission or otherwise, unless upon a memorandum in writing signed by or on behalf of the person to be charged. In a letter to the plaintiff, signed by the de- fendant, the latter agreed to sell a hotel for $40,000 and added, '' I will pay you 5 per cent, commission on purchase price." Defendant subsequently sold the property to a purchaser introduced by the plaintiff for %Zi.OQQ.—Held, affirming the judgment appealed from (10 D. L. R. 498; 4 West. W. R. 83), that "purchase price," as used in the letter, had reference to any price for which a sale might be made, and that, con- strued in connection with the conduct of the parties, the memorandum was sufficient, under the statute, to entitle the plaintiff to recover a commission at the rate mentioned for his services in regard to the sale made at the reduced pricei to the purchaser in- troduced by him. Tovlmin v. Millar (58 L. T. 96), and Burchell v. Oowrie and Blockhouse Collieries ([1910] A. C. 614), referred to. Howard v. George, xlix., 75. 47. " MiUtia Act "—R. S. C. [1896] c. J,l — " Senior officer . . . present at any locality " — Military district — Right of action —5 Edw. VII. c. 23, s. 86.]— By sec. 16 of the " Militia Act" (R. S. C. [1896] ch. 41), Canada is divided into military districts of which the Province of Nova S'cotia is one. By sec. 34 " the senior officer present at any locality " may, on requisition from three justices of the peace, call out the troops in aid of the civil power wherever a riot or disturbance of the peace has occurred or is anticipated. — Held, Brodeur, J., dissenting, that the " senior officer jjresent at any lo- cality " is not necessarily the senior officer of a corps stationed at the place where the riot occurs or is likely to occur. The jus- tices, in their discretion, may requisition the senior officer of any available force. — Judg- ment appealed from (46 N. S. Rep. 527) reversed, Brodeur, J., dissenting. Attorney- General of Canada v. City of Sydney, xlix., 148. And see Militia. 48. Money received under prohibited con- tract — Recovery of funds — Right of action.] — Held, also, that, in the circumstances of the case, the plaintiff's right of action was not affected by the illicit nature of the agreement and that he was entitled to re- cover the amount so retained in an action for money had and received to his use by the defendant, or under the provisions of sec. 11 of the Quebec statute, 58 Vict. ch. 42. — Judgment appealed from reversed. Consum- ers' Cordage Co. v. Connolly (31 Can. S. C. R. 244), followed. (Leave to appeal to Privy Council granted, 7th July, 1914). Lapointe v. Messier, xlix., 271. And see Municipal Corporation. 49. Right of action — Lord Campbell's Act — Death by accident — Action by widow — Ac- cord and satisfaction.] — Where the death of a person is caused by the wrongful act, neglect or default of another an action for damages does not lie under Lord Campbell's Act unless the deceased could have main- 27 ACTION. 28 tained an action if death had not ensued. — C. was a temporary employee on the Inter- colonial Kailway and, as such, a member of the " Employees' Relief and Insurance As- sociation." By the rules of the Association the object of th« Temporary Employees' Ac- cident Fund was to provide for members suffering from bodily injury and for the family or relatives of deceased members. Each member had to contribute to the fund and the Railway Department gave the an- nual sum of $8,000 in consideration of which it was to be " relieved of all claims for compensation for injury or death of any member." C. was killed by a railway train and his widow was paid $250 out of this fund. She then brought an action under "Lord Oampbell's Act." — Held, affirming the ■judgment of the Exchequer Court (14 Ex. C. R. 472), that as by his contract with the Association C. could not have maintained an action lad he lived the widow's right of ac- tion was barred. Conrod v. The King, xlix., 577. 50. Municipal corporation — Powers of council — Higlnoays — Exclusive privilege — THecessiiy of by-law — Validity of contract — Right of action — Status of plaintiif — Share- holder in joint-stock company — Ratepayer — Special injury — Public interest — Prosecution by Attorney-General — Practice — Art. 9T8 C.P.Q.} — Assuming to act under authority of an existing by-law regulating traffic by autobusses and in virtue of a special statute (2 Geo. v., eh. 56 (Que.) ), and the general powers conferred by the city charter the municipal council passed a resolution auth- orizing the corporation of the municipality to enter into a contract granting a joint stock company the exclusive privilege of operating autobus lines on certain streets in the city and charging fares for the carriage of pas- sengers. An action was brought by a share- holder in a tramway company (which held similar privileges), who was also a munici- pal ratepayer, attacking the validity of the by-law and of a contract made by the mu- nicipal corporation in pursuance of the re- solution on the grounds that there was no authority for the granting of such exclusive privileges, that such powers, if they existed, could only be exercised by means of a by- law, and that a provision in the contract whereby the municipality became entitled to certain shares in the stock of the autobus company, was itltra vires of the municipal corporation. — Held, affirming the judgment appealed from (Q. R. 23 K. B. 338), Iding- ton and Anglin, JJ., dissenting, that in the absence of evidence of special injury sus- tained by the plaintiff, he had no status entitling him to bring the action. — Per Id- ington, J., dissenting. — The plaintiff was en- titled to institute the action by virtue either of his quality as a shareholder in the tram- way company, the privileges of which might be injuriously affected, or as a ratepayer of th« municipality. — Per Anglin, J., dissent- ing. — The plaintiff could bring the action in his capacity as a ratepayer of the munici- pality. — Per Pitzpatrick, C.J., and Duff and Brodeur, JJ. — An appropriate remedy in such a case would be by action prosecuted by the Attorney-General of the province un- der article 978 of the Code of Civil Proce- dure. — Per Duff, J. — Such an action might be prosecuted either by the municipal cor- poration itself or by an authority repre- senting the general public. — Validity of the by-law, resolution and contract in question discussed by Idington, Duff and Anglin, JJ. Robertson v. Montreal, 111., 30. 51. Contract — Inapplicable conditions — Action for quantum meruit. Toronto Hotel Go. V. Sloan, Gout. Gas. 356. 52. Railways — 'Negligence — Braking ap- paratus — Sand valves — Defects in ma- chinery — Employer's liability — Provident society — Condition of indemnity — Lord Campbell's Act — vRight of action, xxxiv., 45. See Negligence. 53. Decision of commissioner of mines — Appeal — Final judgment — Estoppel — Res judicata — Mandamus — Appropriate remedy, xxxiv., 328. See Appeal. 54. Contract by municipal corporation — Powers — By-law or resolution — Right of ac- tion — Confession of judgment — Evidence — Admissions — Pleading — Estoppel by record — Art. 12Ji5 C. C. — Concurrent findings of fact — Practice on appeal, xxxiv., 495. See Evidence. 55. Public work — Lands injuriously af- fected — Closing highway — Inconvenient sub- stitute — Right of action, xxxiv., 570. See Public Work. 56. Title to land — Trespass — Possession — Right of action — Enclosure by fencing, XXXV., 185. See Title to Land. 57. Right to appeal — Interest of appel- lant — Parties to action — Art. 71 C. P. Q. — Sales of substituted lands — Will — Prohibi- tion against alienation — Arts. 252, 95Sa, 968 et seq. C. C^^Res judicata, xxxv., 193. See Appbial. 58. Contract of fire insurance — Re-insur- ance policy — " Rider " — Condition ■ — Trade custom^Limitations of actions — Commence- ment of prescription, xxxv., 208. See Limitations of Actions. 59. Title to land — Sale of mineral rights — Litigious rights — Champerty, xxxv., 327. See Title to Land. 60. Title to land — Conveyance in fee — • Reservation of life estate — Possession — Ejectment, xxxvi., 231. See Title to Land. 61. Limitation of actions — Unregistered deed — Subsequent registered mortgage — Pos- session — Right of entry, xxxvi., '455. See Limitations of Actions. 62. Contract — Breach of conditions ■ — Liquidated damages — Penalty — Cumulative remedy, xxxvii., 430. See Tramway. 29 ACTION. 30 63. Operation of railway — -Negligence ~ Moving train — Regulations — Personal lia- bility of employee — Estoppel.] — The plain- tiff was injured in attempting to 'board a moving train after the conductor had given the signal " all aboard " : — Held, that she was entitled to recover in an action against the conductor personally for his failure to observe rules and look after the safety of passengers. McFadden v. Hall (Cout. Dig. 961; 1191) Cam. Gas. 589. 64. Practice — Pleading — ■ Amendment ordered ty court — Married woman — Legal community — Right of action — Reprise d'in- stance—Arts. 78, ITJi, 116 0. P. Q.—R. S. G. c. 135, ss. 63, 6Ji. North Shore Power Co. V. Duguay, xxxvii., 624. 65. Contract — Supply of material — Pay- ment — Certificate of engineei Condition preceden t — Improper interference — Fraud — Hindering performance of condition ■ — Monthly estimate — Final decision, Temis- kaming and Northern Ontario Ry. Comm. v. Wallace, xxxvii., 696. 66. Actio negatoria servltutis — Boundary ditch — Estoppel — Waiver of objections — Evidence. Breton v. Gonthier dit Bernard, Cout. Cas. 350. 67. Construction of deed — Ambiguity — ■ Discharge of debtor — Contract — Illegal con- sideration — Right of action, xxxvii., 613. See Deed. 68. Breach of trust by Crown — Purchase of debentures otit of Common School Fund — Knowledge of misappropriation of moneys — Payment of interest — Statutory prohibition — Evasion of statute — Estoppel against Crown — Adding parties — Practice, xxxvii., 62. See Quebec Nobth Siioee Turnpike Koad Tkust. 69. Breach of contract — Breach of trust — • Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Ac- coant — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel, xxxviii., 198. See Trusts. 70. Negligence — Trespass — Horse racing — Intruder upon race-track ■ — Carelessness, xxxviil., 226. See Negligence. 71. Vacating judgment — Appeal — Juris- diction — Matter in controversy — Tierce op- position — Arts. 1185-1188 C P. Q.—R. 8. G. (1886) c. 135, s. 2i), xxxviii., 236. See Opposition. 72. Crown — Banks and banking — Forged cheques — Payment — Representation by drawee — Implied guarantee — Estoppel — Ac- knowledgment of bank statements — Liability of indorsers — Mistake — Money had and re- ceived, xxxviii.,. 258. See Banks and Banking. 73. Admiralty law — '■ Foreign bottoms — Collision in foreign waters — Jurisdiction of Canadian Courts, xxxviii., 303. See Ships and Shipping. 74. Public work — Contract — Change in plans and specifications — Waiver by order in council — Powers of executive — Construction of statute — Directory and imperative clauses — Words and phrases — " Stipulations " — Ex- chequer Court Act s. 33 — Extra works — En- gineer's certificates — Instructions in writing — Schedule of prices — Compensation at in- creased rate — Damages — Right of action — Quantum meruit, xxxviii., 501. See CONTBACT. 75. Subaqueous mining — Crown grants — Dredging lease — Breach, oj contract — Sub- sequent issue of placer mining licenses — Damages — Pleading and practice — State- ment of claim — Cause of action, xxxviii., 542. See Mines and Mining. 76. Tendor and purchaser — Sale of land — Formation of contract — Conditions — Accept- ance of title — New term — Statute of Frauds — Principal and agent — Secret commission — Avoidance of contract — Fraud — Specific per- formance, xxxviii., 588. See CONTKACT. 77. Construction of deed — Title to land — Servitude — Acquiescence — Estoppel by con- duct — Actio negatoria servitutis — Operation of waterworks, xxxix., 244. See Deed. 7S. Promissory note — Fraud in procuring — Discount — Oood faith — Evidence — Onus of proof, xxxix., 541. See Bills and Xotes. 79. Insurance — Sprinkler system — Dam- age from leakage or discharge — Injury from frost — Application — Interim receipt, xxxix., 558. See Insurance, Accident. 80. Title to land — Interest in mining areas — Sale by trustee — Recovery of proceeds of sale — Agreement in writing — Statute of Frauds— R. S. N. S. (1900) c. l-'/l, ss. 4 and 7 — Part performance — Acts referable to contract— Evidence — Pleading, xxxix., 608. See Title to Land. 81. Trust — Company law ■ — Extra re- muneration — Ultra vires act of directors — Ratification — Recovery of moneys illegally paid — Mistake of law, xxxix., 614. See Company. 82. Shipping — Material men — Supplies furnished for " last voyage " — Privilege of dernier equippur — Round voyage — Charter party — Personal debts of hirers — Seizure of ship—Arts. 2383, 2391 G. G.—Art. 931 C. P. Q. — Construction of statute — Ordonnances de la Marine, .X681, xl., 45. See Ships and Shipping 83. Principal and agent — Secret profit Trust — Clandestine transactions by broker 31 ACTION. 32 Sham purchaser — Commission — Quantum meruit, xL, 134. See Principal and Agent. 84. Title to land — Construction of deed — Easement appurtenant — Use of common lane — Overhanging fire-escape — Encroachment on space over lan-e — Trespass — Right of action, xi.j 188. See Deed. 85. Admiralty law — Jurisdiction of the Exchequer Court of Canada — Claim under mortgage on ship — Action in rem — Pleading — Abatement of contract price — Defects in construction — Damages, xl., 418. See Ships and Shipping. 86. NegHgence — Petition of right — Oov- ernment railway — Operation over other lines • — Agreement for running rights — Exten- sions and brandies — " Public work " — Con- struction of statute — " Government Rail- ways Acf'—R. S. C. 1906, c. 36, s. 80— " Exchequer Court Act " — R. S. C. 1906, c. UO, s. 20 (c), xl., 431. See Railways. 87. Company — S«7e of shares — Misrepre- sentation — Fraud — Action for deceit — Ac- cord anid satisfaction, xl., 437. See Fraud. 88. Promissory note — Negotiability — In- dorsement — Liability of maker — Equitable claim, Cam. Cas. 129. See Bills akd Notes. 89. Title to land — Trespass — Conventional line — Boundary — Agreement at trial — Plead- ing — Practice, Cam'. Cas. 171. See Trespass. 90. Assignment — Insolvency — Fraud — Right of action — Misdirection — iVetu trial — Accounts — Practice, Cam. Cas. 245. See New Trial. 91. Sale of goods — Insolvency — Bond fides ■ — Fraudulent preference — Interpleader — Res judicata — Estoppel — Pleading — Bar to action, Cam. Cas. 306. See Sale. 92. Husband and wife — Institution of ac- tion by divorced wife — Judicial authori,:a- tionr—Arts. 176, 178 C. C.—Art. U C. C. P. — Divorce — Decree by foreign tribunal — Jur- isdiction — Effect in Quebec — Comity of na- tions. Cam. Cas. 392. See Divorce. 93 Ships and shipping — Material used in construction — Sale of goods — Contract — Principal and agent — Misrepresentations — Mistake — Conversion — Trover — Evidence — Misdirection — Neic trial — 'Ship's husband ■ — Pleading — Credit of oioners — Necessary outfitting at home port, Cout. Cas. 131. See Ships and Shipping. 94. Appeal — Jurisdiction — Title to land — Action possessoire — Demolition of works — Matter in controversy, Cout. Cas. 141. See Appeal. 95. Municipal corporation — Drainage — Construction of sewers — Nuisance — Injunc- tion — Damages — Right of action — Practice, Cout. Ca-s. 162. See Appeal. 96. Railways — Negligence — " Fatal Ac- cidents Act " — Cunmlati/ee actions, Cout. Cas. 347. See Negligence. 97. Company — Sale of shares — Resolutive condition — Hypothecary security — Construc- tion of contrant — Rescission, xli., 185. See Contract. 98. Contract — Agreement for sale of land — Deferred conveyance — Default in payment — Remedy of vendor — Reading " or " as " and," xli., 607. See Contract. 99. Breach of contract — Place of perform- ance — Foreign judgment — Action. Canada Wood V. Merit;:, xlii., 2.37. See Contract. 100. Agreement for sale of lands — Con- struction of contract — Right of action — Partition — Administration by co-owners — Trust — Interim account — Partial discharge of trustees. Angus v. Heinz, xlii., 416. See Trusts. 101. Appeal — Jurisdiction — Rivers and streams — Right of floating logs — 'Servitude — Faculty or license — Possessory action — Injunction — Matter in controversy — Prac- tice — Costs, xlii., 133. See Appeal. 102. Raihcays — Construction and opera- tion — Location plans — Delay in notice to treat — Action to compel expropriation — • Compensation in respect of lands not ac- quired — Mandamus — Use of highway — Cros- sing public lane — Nuisance, xliv., 65. See Railways. 103. Appeal — Nature of action — Equitable relief — " Supreme Court Act," s. 38c — Ap- peal from referee — Final judgment — Assess- ment of damages, xliv., 284. See Appeal. 104. Condition of contract — Notice — Policy of accident insurance — Tender before action —Waiver, xliv., 386. See Insurance, Accident. 105. Petition of right — Contract — Powers of Commissioners of the Transcontinental Railway — Liability of Crown — Construction of statute— 3 Edw. VII, c. 71 (D.), xliv., 448. See Crown. 106. Lease — Water lot — Status of lessee- Riparian owner — Injunction — Action to have access to lot, xliv., 629. See Injunction. 107. Municipal corporation — Highways — Nuisance — Repair of sidewalks — Negligence 33 ADMIRALTY LAW. 34 — Statutory duty — Nonfeascmce — Personal injury — Civil liability — Bight of action — Construction of statute — " Vancouver City Charter," xlv., 194. See Municipal Corporations. 108. Construction of statute — Fishery and game leases — Personal servitude — Possession — Use and occupation — Right of action — Action en complainte — Renewed leases — • Priority — Watercourses — Works to facilitate lurnbering operations — Driving logs — Stor- age darns — Penning tack waters out of track of transmission — Damages — Rights of lessees — Injury to preserves — Injimction — Demoli- tion of works, xlv., 1. See Rivers and Streams. 109. Repair of municipal highway — Statu- tory duty — " Unfenced trap " in sidewalk — Misfeasance — Negligence — Notice — Know- ledge — lAaiility of corporation — " Res ipsa loquitur," xlvi., 457. See Municipal Corporation. 110. Broker — Sale of land — Principal and agent — Disclosing material information — Secret profit — Vendor and purchaser — Agent's right to sell or purchase — Specific performance, xlvi., 477. See Broker. 111. Life insurance — Endowment policy — Surrender — Cash value — Rescission — Repre- sentation by agent — Inducement to insure, xlvi., 606. See Insurance. 112. Action against minor — Exception of minority — Pra-ctice — Irregularity in proce- dure — Waircr after majority-^Ratification — Prejudice — Nu'liiy — Review by appellate court, xlvii, 103. See Practice, 113. Sale of land — Deceit — Misrepresenta'- tion — Honest belief — Pleading — Amendmeht — Adding new cause of action, xlvii., 399. See Sale. 114. Payment by insolvent — Preference — Recovery back by curator — Gaming transac- tion — Illegal contract — Right of action — Arts. 1031, 1032, 1036, 1927 G. C.—Arts. 853 et seq. C. P. Q. xlix., 91. See Insolvency. 115. Rivers and streams — Industrial im- provements — Penning back loaters — Perman- ent iDorlcs — Damages — Measure of damages — Expertise — Arbitration — Reparation — Loss of water-power — Future damages — Compensation once for all — Right of action — Practice— Statute— R. S. Q., 1909, arts. 7295, 7296, rlix., 344. See KivEEs and Streams. 116. Practice — Action by dependents — ■ "Families Compensation Act " — Release by deceased — Defence to action — Repudia- tion — Fraud — Setting aside release — Per- sonal representative — Right of action — Re- turn of money paid — Limitation of actions — General statutory provision — Carriers — Pri- vate Act — B. C. " Consolidated Railway Company's Act " — Statute — R. 8. B. 0. 1911, c. 82— Lord Campbell's Act"— (B.C.) 59 V. 0. 55, s. 60, xlix., 470. See Practice and Procedure. 117. Assessment and taxes — Lease of Croion lands — Interest of occupier — Con- stituiional law — Exemption from taxation — Construction of statute — " B. N. A. Act, 1867," s. 125—(Sask.) 6 Edw. VII., c. 36, " Local Improvement Act '' — (Sask.) 7 Edw. VII., c. 3, " Supplementary Revenue Act " — Recovery of taxes — Non-resident — Action for debt — Jurisdiction of provincial courts, xlix., 563. See Constitutional Law. 118. Statute — " Colonial Courts of Admir- alty Act, 1890," (Imp.) 53 & 54 V. c. 27— " Public Authorities Protection Act, 1892," (Imp.) 56 & 57 V. c. 61 — Limitation of ac- tions — Effect of statutes — Practice and pro- cedure — jurisdiction, xlix, 627. See Statute. 119. Partnership — Lease — Scope of auth- ority — Resiliation — Form of — Appropriate relief — Pleading — Practice, 1, 295. See Partnership. 120. Negligence — Operation of railway — Unsafe roadbed — Speed of trains — Disobedi- ence of orders — Answers by jury — " Lord Campbell's Act " — Injury sustahied outside province — Right of action in Manitoba, lii., 227. See Negligence. ADMIRALTY LAAV. 1. Maritime law — Collision — Inland wa- ters — Narrow channel — Boston harbour.^ — Rule 35 of the United States " Inland rules to prevent Collision of Vessels " provides that " in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-ehaimel whdch lies on the starboard side of such ves- sel." — Held, affirming the judgment appealed against (9 Ex. C. R. 160), that the inner harbour of Boston, Mass., is not a narrow channel within the meaning of said rule. The " Calvin Austin " v. Lovitt, xxxv., 616. 2. Admiralty law — Navigation — Negli- gence — Overtaking vessel — Finding of fact — Cause of collision.] — The Supreme Court of Canada affirmed the decision of the trial judge who, on appreciation of conflicting evidence, found that the appellant ship was entirely to blame for the collision complained of by attempting to pass the vessel Injured in close proximity and at undue speed, th«reby causing the smaller vessel to sheer to port and collide with her in a narrow channel. The " C. F. Bielman " v. Cadwell, Cout. Cas., 405. 3. Navigation — Narroio channel— Mule of the road — Look-out — Meeting ships — Colli- S.C.D.- 35 ADMIRALTY LAW. 36 sion — Special rule of port — Sorel hariour re- gulations — Lights and signals — Negligence — Evidence — Damages — Practice — Improper comments in factum — Appeal to Privy Coun- cil — Order for hail.'] — A pilot in charge of a ship, or a man at the wheel, is not a suffi- cient look-out within the rules of naviga- tion for preventing collisions in narrow channels. Judgment appealed from (9 Ex. O. R. 76), affirmed. — Where meeting ships are in collision and one of them has ne- glected to observe the regulations, there must be evidence of gross dereliction of duty or want of skill in navigation in ' order to make out a case for apportionment of dam- ages against the other ship. — Where a ship navigating a narrow channel has no proper look-out and neglects to signal her course at a reasonable distance, thus perplexing and misleading a meeting ship, the former is alone responsible for all damages caused_ by collision, even if, in the agony of collision, a different manojuvre on the part of the other ship might have avoided the accident. Judgment appealed from (9 Ex. C. R. 67), reversed, Girouard, J., dissenting. — Com- ments in the appellants' factum relating to a judgment of the Wreck Commissioner's Court, which did not form any part of the record, were ordered to be struck out, with costs to the respondents. (Appeal to Privy Council dismissed, [1907] A. C. 112 :— see note to No. 5, post) . 8.8. " Cape Breton " V. Richelieu and Ontario Navigation Co., xxxvi., 564. See Privy Cotthcil. 4. Maritime law — Collision — Crossing ships — Admiralty rules, 1897, rule 19.'] — The SS. " Parisian," making for Halifax Harbour, came along the western shore, sailing almost due north to a pilot station, on reaching which she slowed down, finally stopping her engines. The " Albano," a Ger- man steamship for the same port, approached some miles to the eastward, sailing first by error, to the north-east, and then changing her course to the south-west, apparently making for the eastern passage to the har- bour. She again altered her course, how- ever, and came almost due west towards the pilot station. When about a quarter of a mile from the " Parisian " she slowed down, and on coming within eight or nine ship's lengths gave three blasts of her whistle, in- dicating that she would go full speed astern. The " Parisian " then, seeing that a collision was inevitable.went full speed ahead for about 200 feet when she was struck on the star- board quarter and had to make for the dock to avoid sinking outside. The " Parisian's " engines were stopped about six minutes be- fore the collision, and a boat from the pilot cutter was rowing up to her when she was struck. At the tithe of the collision, about 5 p.m., the wind was light, weather fine and clear, there was no sea running and no per- ceptible tide. — Held, affirming the judgment of the local judge, that the captain of the "Albano " had no right to regard the " Pari- sian " as a crossing ship within the meaning of rule 19 of the Admiralty Rules, 1897; and that the "Parisian" having properly stopped to take a pilot on board, and being practically in the act of doing so at the tin\p, the " Albano " was bound to avoid Her and was alone to blame for the collision. (Ap- peal to Privy Council allowed, [1907] A. C. 193: — see next para.) Owners SS. "Al- bano " v. Owners SS. " Parisian," xxxvii., 284. 5. Appeal to Privy Council — Colonial Courts of Admiralty Act, 1890 (Imp.) — Right of appeal de piano — Bail for costs — Practice.] — Upon the application of the ap- pellants (30th March, 1906), for an order to fix ball on a proposed appeal, direct to His Majesty in Council, under the rules established by the Colonial Courts of Ad- miralty Act, 1890 (Imp.), the Supreme Court of Canada, sitting in banco, after hearing counsel for and against the applica- tion, made an order, pro formd (without ex- pressing any opinion as to the right of ap- pealing de piano), that the appellants should give bail to answer the costs of the pro- posed appeal in the sum of £300, sterling, to the satisfaction of the Registrar of the Supreme Court of Canada, on or before the 4th of April, 1906. The " Albano " v. The " Parisian." (No. 3 ante) , xxxvii., 301. (In The "Cape Breton" v. Richelieu and Ontario Nav. Co. (36 Can. S. C. R. 592: No. 2 ante), a similar order was made by a judge in chambers and the Judicial Com- mittee heard the appeal without requiring the appellants to obtain leave or give other security (48 Can. Gaz. 279). 6. Shipping — Collision — Violation of rules not affecting accident — Steering wrong course.] — The Supreme Court will not set aside the finding of a nautical assessor on questions of navigation adopted by the local judge unless the appellant can point out his mistake and shew conclusively that the judg- ment is entirely erroneous. The " Picton,'' (4 Can. S. C. R. 648), followed.— A steamer coming up Halifax harbour ran into a schooner striking her stern on the port side. No sound signals were given. The green light on the schooner was seen on the steam- er's port bow and the latter starboarded her helm to pass astern and then ported. She then was so close that the engines were stopped, but too late to prevent the collision. — Held, that the steamer alone was to blame for the collision. — Held, also, that though under 'the rules the schooner should have kept her course, and also was to blame for not having a proper look-out, neither fault contributed to the collision. (Appeal to Privy Council stood dismissed for want of prosecution, 27th May, 1907, under Privy Council Rule V. of 13th June, 1853). SS. " Arranmore " v. RuUolph, xxxviil., 176. 7. Foreign bottoms — Collision in foreign waters — Jurisdiction of Canadian Courts.] — A foreign vessel passing through waters dividing Canada from the United States un- der a treaty allowing free passage to ships of both nations Is not, even when on the Canadian side, within Canadian control so as to "be subject to arrest on a warrant from the Aflmiralty Court. — A warrant to arrest a foreign ship cannot be issued until she is within the jurisdiction of the Court. — Quare, have the Canadian Courts of Admiralty the same jurisdiction as those in England totry an action in rem. by one foreian ship against another for damages caused by a collision in 37 ADMIRALTY LAW. 38 foreign waters? — Judgment of the Exche- quer Court, Toronto Admiralty District (10 Ex. C. R. 1) reversed, Idington, J., dissent- ing. The Ship " D. C. Whitney" v. St. Clair Navigation Co. xxxviii., 303. 8. Maritime law — Collision — Negligence — Tug and tow — Negligence of tow.] — A tug with the ship " Wandrian " in tow left a wharf at Parrsboro', N.S., to proceed down the river and get to sea. The schooner " Helen M." was at anchor in the channel and the tug directed its course so as to pass her on the port side when another vessel was seen coming out from a slip on that side. The tug then, when near the " Helen M.," changed her course without giving any isig- nal and tried to cross her bow to pass down on the starboard side and, in doing so, the " Wandrian " struck her, inflicting serious injury. In an action against the " Wan- drian " by the owners of the " Helen M." the captain of the former insisted that the schooner was in the middle of the channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side. — Held, affirming the judgment of the local judge (11 Ex. C. R. 1), that the navigation of the tug was faulty and shewed negligence ; that if the "Helen M." was on the eastern side of the channel as found by the judge there was plenty of room to pass on her port side, and if, as contended, she was in the middle of the channel she could easily have been passed to starboard ; and that in attempting to cross over and pass to starboard when she was so near the " Helen M." as to render a collision almost inevitable was negligence on the tug's part ; and that the " Helen M." exercised proper vigilance and was not negligent in failing to slacken her anchor chain as the " Wandrian " was too close and had not signalled. — Beld, also, that the tow was liable for such negligence in the navigation of the tug. The " Wan- drian " v. Hatfield, xxxviii., 431. 9. Preliminary act — Amendment — Colli- sion — Evidence.] — In an action in admir- alty claiming damages for injury to plain- tiffs' ship, the " Neepawah," through colli- sion with the " Westmount " belonging to defendants the preliminary act and state- ment of claim alleged that the port quarter of the latter struck the stern of the " Nee- pawal." The local judge, in his judgment, held that the evidence shewed a collision be- tween the two ships stern to stern and, against objection by defendants' counsel, of his own motion allowed the statement of claim to be amended to conforni to such evi- dence, stating that its admission had not been objected to and that defendants were not misled. — Held, that such amendment should not have been made ; that it set up a new case and one entirely different from ttat presented by the preliminary act and statement of claim and greatly prejudiced the defence ; and that the local judge was wrong in stating that the evidence was ad- mitted without objection as it was proteste'd against at the trial. — Held, also, that errors in the preliminary act may be corrected by the pleadings but, if not, the parties will be held most strongly to what is contained in their act. — Held, per Davies, Maclennan and Duff, JJ., that the plaintiffs had not satis- factorily establisted that the collision, even that charged under the amendment, had actu- ally occurred. — Per Fitzpatrick, C.J., that the evidence proved that no collision between the vessels took place. — Idington, J., con- curred in the judgment allowing the_ appeal. Montreal Transportation Co. v. New Ontario S.S. Co., xl., 160. 10. Jurisdiction of the Exchequer Court of Canada — Claim under mortgage on ship — Ac- tion in renh — Pleading — Abatement of con- tract price — Defects in construction — Dam- ages.] — In an action in rem by the builders of a ship to enforce a mortgage thereon, given to them on account of tte contract price' for its construction, the owners, for whom the ship was built, may plead as a de- fence pro tanto that the ship was not con- structed according to speciticatiohs and claim an abatement of the price in consequence of such default and that the loss in value of the ship, at the time of delivery, attributable to such default, should be deducted from th'e claim under the mortgage. Bow, McLachlan end Co. V. The " Camosun," xl., 418. [Leave to appeal to Privy Council was granted by the Supreme Court of Canada : see note at end of report, p. 430.] 11. Maritime law — Collision — Negligence — Failure to hear signal — Evidence.] — The S.S. " Senlac " was coming out of Halifax harbour taking the eastern side of the chan- nel. There was a dense fog at the time and the fog signals were sounded at regular in- tervals. She was making about six knots and having passed George's Island heard the whistle of an incoming steamer. Pog signals were given in reply and when the incoming vessel, the "Rosalind," was estimated to be about half a mile off, the " Senlac " gave a single short blast and directed her course to starboard. The " Rosalind " replied to this signal and stopped her engines. Within a few seconds the " Senlac " was seen about a ship's length away on tte port bow and almost at the same moment the latter gave two short blasts on her whistle and swung to port threatening to cross the " Rosa- lind's " bow. The " Rosalind's " engines were immediately i)ut " full speed astern," but too late to avoid a collision in which the " Senlac " was seriously damaged. At the trial of an action by the latter reliance was placed on the failure of the " Rosalind " to respond to ler signals, but the first signal admitted to have been heard on the " Rosa- lind " was the one short blast when the " Senlac " went to starboard. The. result of the trial was that both vessels were found in fault, and on appeal by the " Rosalind " : — Held, that the " Senlac " was in fault in continuing on her course when the vessels were quite near together instead of stopping and reversing and was alone to blame for the collision, and that the failure to hear her signals was not negligence on the part of the " Rosalind " and did not contribute in any material degree to the accident. S«S. "Rosalind" v. Steamship Senlac Co., xli., 54. 12. Appeal — New grounds — Admiralty law — Collision.] — A court of appeal should not consider a ground not previously relied on unless satisfied it has all the evidence bear- ing upon it that could have been produced '39 ADMIRALTY LAW. 40 at the trial and that the party against whom it is urged could not have satisfactorily ex- plained it under examination. — In this case 'damages were claimed from the owners of the " Euphemia " for collision with plain- tiffs' ship, and the latter in their prelimin- ary act charged that the " Exiphemia " was in "fault for not reversing her engines. The Exchequer Court judgment held plaintiffs' ship alone in fault and on appeal the ma- jority of the Supreme Court refused to consider the ground not previously urged that the " Euphemia " when she saw the other ship attempting to cross her how held too long on her course instead of reversing. Fitzpatrick, C. J., and Davies, J., were of opinion that under the circumstances this point was open to the plaintiffs. SS. " 2'o»-- denskjold " v. SS. " Euphemia," xli., 154. 13. Admiralty law — Salvage — Injury to salving ship — Necessities of service — Sea- manship — Appeal on nautical question,} — In an admiralty case the Supreme Court of Canada must weigh the evidence. for itself unassisted by expert advice and will, if the evidence warrants it, reverse the judgment appealed against on a question of seaman- ship or navigation. — The ship " 51." brought an action for the value of salvage services rendered to the " N.," part of the damages claimed being for injury to the " M." in performing such services. — Meld, Girouard and Maelennan, JJ., dissenting, that the evi- dence established that said injury was not caused by necessities of the service but by unskilful 'Seamanship and improper naviga- tion ; the judgment appealed against should, consequently, be varied by a substantial re- duction of the damages allowed by the local judge. — The dissenting judges were of opin- ion that sufficient ground was not shown for disturbing the findings of the trial judge. The "Nanna" v. The "Mystic," xli., 168. 14. Maritime law — Tug and to-u^— Con- tract of navigation — Collision of tug — hia^ hility of tow — Foreign ship — Proceedings in foreign court — Jurisdiction in Canada.] — The American tug " A. L. Smith " was ascending the River St. Clair having in tow the barge "Chinook," the two being engaged in the business of their common owner. The " Chinook " having no propelling power nor steering apparatus the navigation was con- trolled by the officers and crew of the tug, the tow being attached by a line fifteen feet long. They kept on the American side and the " Smith " sheered and collided with a barge being towed down, causing it to sink. — Held, affirming the judgment of the Ex- chequer Court (15 Ex C. R. Ill), Davies and Anglin, JJ., dissenting, that the tug and tow must be regarded as one ship and each was liable for the consequences of the collision. The "American " and the " Sy- ria" (L. R. 6 P. C. 127), discussed and distinguished. — Per Davies and Anglin, JJ., dissenting, that as the " Chinook " took no part in the navigation, and there being no master and servant relationship between her and the " Smith," she should not be held liable. — Shortly after the collision the owner brought action in a United States court to limit the liability of the " Smith " and the extent of her liability was iixed at $1,500. Later the two ships were seized in Canadian waters, taken into a Canadian port and released on receipt of a bond by a guarantee company conditioned to pay any amount awarded against either or both. The action in rem was then proceeded with, re- sulting in both ships being condemned : — Seld, that the proceedings in the United States did not oust the Canadian court of jurisdiction : — Held, per Idington, J. — The defendants are not entitled to limitation of the damages under United States or Can- adian statutes, the same not having been pleaded nor any evidence of it produced. — Per Davies and Anglin, JJ. — As the colli- sion occurred in the domestic waters of the foreign ship held at fault the extent of her liability must be determined by the lex loci commissi delicti, and the damages should be limited to the value of the " Smith " immediately after the col- lision : — Held, per Duff, J., following the "Dictator" ([1892 P. 304) and the "Gemma" ([1899] P. 285), that as the owners appeared and contested the liability of the ships they became parties to the action and subject to have personal judg- ment pronounced against them for the amount of damages properly recoverable for the negligence of their servants. The trial judge having held, on the sole issue of fact raised at the trial, that the " Smith," as between her and the " Moyles," was solely to blame, the appellant owners were primO, facie liable for the full amount of damages suffered. Assuming, however, that if the " Chinook " was free from blame, they were entitled to the benefit of the United States laws limiting their liability to the value of the offending res, then, as this issue was not raised or tried in the Exchequer Court, they could only succeed if the facts in evidence conclusively demonstrated the innocence of the " Chinook," or. in other words, that the " Smith " and " Chinook " were not identi- fied for the purpose of assigning liability, the question of identification being a ques- tion of fact depending upon the particular circumstances. Ships " A. L. Smith " v. On- tario Gravel Freighting Co., li., 39. 15. Negligence — Navigation of inland waters — Collision — Government ships and vessels — " Puilio Work " — " The Exchequer Court Act, s. 16 — Construction of statute — Right of action, xxxviii., l26. See Negligence. 16. Statute — " Colonial Courts of Admir- alty Act, 1S99 Ump.) 53 & 54 Y. c. t1— " Puilic Authorities Protection Act, 1S92," (Imp.) 56 & 51 V. c. 61 — Limitation of ac- tions — Effect of statutes — Practice and pro- cedure — Jurisdiction, xlix., 627. See Statute. 17. Navigation of canal — " Narrow chan- nel " — Marine Department Regulations, rule 25 — Starhoard course — Fairways amd mid- channels — " Canada Shipping Act," B. S. G. 1906, c. 113, s. 916 — Collision— LiaUlity for damages — Canal Regulations, rule 22 — Rigl^t of way, liv., 51. See Collision. 41 APPEAL. 42 ADMINISTRATORS. See Executors and Administrators- Acy — Successions — Will. -Leg- admission. 1. Contract ty municipal corporation — Pow- ers — By-law or resolution — Right of action — Confession of judgment — Evidence — Plead- ings — Estoppel by record — Art. JSJj-S G. C. — Concurrent findings of fact — Practice on appeal, xxxiv., 495. See Evidence. . 2. Crown case reserved — Admission of evi- dence — Res gest(B, xxxviii., 284. See Criminal Law. advocate. See Counsel — Solicitor. AFFIDAVIT. Bill of sale — Mortgage — Registration — Affidavit — Verification — B. C. " Bills of Sale Act," 5 Edw. VII. c. S, s. 7, xlix., 541. See Bills of Sale. AFFREIGHTMENT. 1. Charter party — Time limited for loading ship — Loading at port — Custom — Obligation of charterer, xxxiv., 578. See Ships and Shipping. 2. Marine insurance — Loss of freight — De- tention by ice — Perils insured against. Cam. Cas. 86. See Insurance, Marine. AGENCY. Account — Statute of Limitations — Agents or partners — Reference — Practice, xxxviii., 216. See Account - Principal and Agent Mandate. AGENT. See Principal and Agent. AIR. Title to land — Servitude — Construction of deed — Reservations — " Representatives " — Owners par indivis — Common laties — Right of passage— Private wall — Windows and openings on line of lane. Arts. 5SS-538 C. C, xxxvi., 618. See Servitude. ALBERTA " LIQUOR LICENSE ORDINANCE." Appeal ■ — Jurisdiction — Special leave ■ — " Judicial proceeding " — Discretionary order — Matter of public interest — Practice, s. 57 — ■" Originating summons " — R. 8. G. 1908, c. 139, s. 37—8 Edw. VII. (Alta.) , c. 7, ss. 1, 2, 6. See Appeal. ALLUVION. Title to land — Accession — Sea beaches — • Servitude — Access to navigable icaters ■ — ■ Possession annale — Possessory action, xxxiv., 716. See Title to Land. AMENDMENT. 1. Appeal — Discretion of court below — Amendment of formal judgment — Mining re- gulations, xxxiv., 279. See Appeal. 2. Omission to plead issue — Setting aside fraudulent conveyance — Plea of nihil debet, xxxvi., 251. See Pleading. And see Pleading — Practice. 3. Prevost v. Bedard, li., 629. See Practice and Procedure, 5. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. APPEAL. 1-6. Appeal Bond, Arbitrations and Award, 7-8. Controversy Involved, 9-61. Costs, 62-73. Court Appealed from, 74-83. Criminal Appeals, 84-92. Cross-appeals, 92-94. Discretionary Orders, 95-111. Election Appeals, 112-116. Final Judgments, 117-146. Findings in Courts Below, 147-172. Habeas Corpus, 173-174. Injunction, 175. Jurisdiction, 176-185. Leave to Appeal, 186-212. Mandamus, 213-215. New Grounds on Appeal, 216-223. New Trials, 224-244. NoN Pros. Judgments, 245-246. Practice, 247-259. Privy Council, 260-263. Procedure in Courts Below, 264-285. Prohibition, 286. Right of Appeal, 287-301. Time for Appealing, 302-318. Winding-up Act, 319-325. Other Cases, 326-330. 43 APPEAL. 44 1. Appeal Bond. 1. Time for hringing appeal — Delays occa- sioned by the court — Jurisdiction — Contro- versy involved — Title to land.J — An action a» pititoire was brought by the City of Hull against the respondents claiming certain real property which the Government of Quebec had sold and granted to the city for the sum of $1,000. The Attorney-General for Que- bec was permitted to intervene and take up the iait et cause of the plaintiff without being formally summoned in warranty. The judgment appealed from was pronounced on the 25th of September, 1903. Notice of ap- peal on behalf of both the plaintiff and the intervenant was given on 3rd November, and notice that securities would be put in on 10th November, 1903, on which latter date the parties were heard on the applications for leave to appeal and for approval of se- curities, before Wiirtfile, J., who reserved his decision until one day after the expiration of the sixty days immediately following the date of the judgment appealed from and, on the 25th November, 1903, granted leave for the appeals and approved the securities filed. — Held, that the appellants could not be pre- judiced by the delay of the judge, in deciding upon the application, until after the expira- tion of the sixty days allowed for bringing the appeals and, following Couture v. Bou- chard (21 Can. S. C. R. 281), that the judg- ment approving the securities and granting leave for the appeals must be treated as if it had been rendered within the time limited for appealing when the applications were made and taken en deliMri. — Seld, also, that as the controversy between the parties related to a title to real estate, both appeals would lie to the Supreme Court of Canada notwithstanding the fact that the liability of the intervenant might be merely for the reimbursement of a sum less than $2',000. Attorney-General for Quebec and the City of Hull V. Scott, xxxiv., 282. 2. Appeal bond — Conditional security.'^ — An appeal bond conditioned to pay costs "iij case the appeal should be dismissed" was refused. No such condition is attached to the security by s. 75 of the S. C. Act, and a respondent is not obliged to accept it. Bazi- 11 et V. Gadomy; Laini v. Biland, Cameron, S. C. Prac, 454. 3. Case on appeal — Security for costs — JVaiver — Consent.'\ — The case on appeal to the Supreme Court of Canada cannot be filed unless security for the costs of the ap- peal is furnished as required by s. 46 of the Act. The giving of such security cannot be waived by the respondent nor can the amount fixed by the Act be reduced by his consent. Holsten v. Cockburn, xxxv., 187. 4. Delay in approval of security — Jurisdic- tion — Extension of time — Stay of execution.'] — Application for approval of the security on an appeal to th'e Supreme Court of Can- ada was made within the time limited by the statute, but the hearing of the application was not completed until afterwards, and the judge made an order, after the expiration of sixty days from the rendering of the judg- ment appealed from approving of the secu- rity offered by the appellants. Held, Iding- ton, J., dissenting, that although the record did not show that the Judge -had expressly made an order to that effect he impliedly ex- tended the time by accepting the security offered, and that this was a suflicient compli- ance with the statute. — An objection that the security approved was not such as contem- plated by the 75th/ and 76th sections of the " Supreme Court Act," (the amount thereof being insufficient for a stay of execution), was not entertained for the reason that the amount in controversy was sufficient to bring the case within the competence of the court and it was immaterial whether or not execu- tion could be stayed. The Attorney-General of Quebec v. Scott (84 Can. S. C. R. 282) and The Halifax Election Cases (37 Can. S. G. R. 601) referred to. Great Northern Bail- way Co. V. Furness, Withy & Co., xl., 455. 5. Dispensing with security for costs — Bringing appeal in formd, pauperis, Cout. Cas. 6. See Appeal. 6. Extension of time for appealing — Lapse of order — Practice — Refusal to approve se- curity bond, Cout. Cas. 297. See Appeal. 2. Arbitration and Award. 7. Railway Act — Expropriation — Appeal from aioard — Choice of forum — Curia desig- nato.]— By s. 168 of 3 Edw. VII. c. 58, amending the Railway Act, 1903 (R. S. C. (1906) c. 37, s. 209), if an award by arbitra- tors on expropriation of land by a railway company exceeds $600 any dissatisfied party may appeal therefrom to a Superior Court which, in Ontario, means the High Court or the Court of Appeal (Interpretation Act, R. S. 0. [1906] e. 1, s. 34, s.-s. 26) .—Held, that if an appeal from an award is taken to the High Court there can be no further ap- peal to the Supreme Court of Canada which cannot even give special leave. James Bay Ry. Co, V. Armstrong, xxxviii., 511. 8. Mtmicipal arbitration — Order alloviing judgment to be entered not appealable to Supreme Court.] — The corporation of the township of Langley, pursuant to the provi- sions of the Municipal Clauses Act, B.C., passed a by-law for the opening up of a cer- tain roadway through the property of the respondent DufEy, and served a notice calling upon him to appoint an arbitrator to act with the appellant's arbitrator for the pur- pose of deciding upon what compensation the respondent was entitled to by reason of the expropriation of his property. The arbitrators made an award which was set aside by the court, and the matters in ques- tion referred back to the arbitrators for re- consideration and re-determination. The arbitrators reconsidered the matters and awarded the respondent DufEy $400 and the costs of the arbitration, amounting to $286.40. The respondent DufEy served a no- tice upon the municipality that unless they complied with his terms, an application would be made to the court for liberty to enforce the award. The municipality hav- ing ignored the notice the respondent Duffy 45 APPEAL. 46 moved the court for leave to enforce the award, and the appellant gave notice of mo- tion to set aside the award. The two mo- tions were heard by the court when an order was made refusing for the present the ap- plication of the respondent to enforce the award, and at the same time referring the award back to the arbitrators for further consideration. An appeal was taken from this order to the full Court when an order was made allowing the respondent Duffy to enter up judgment for the amount of the award. From this order an appeal was taken to the Supreme Court of Canada when a mo- tion to quash was made on behalf of the respondent on the ground that the judgment appealed from was not a judgment upon a motion to set aside an award, nor a judg- ment upon a motion by way of an appeal from an award, and after argument the ap- peal was quashed accordingly. Langley v. Duffy, SOth May, 1899, Cam. Prac. 144. 3. CONTKOVERSY INVOLVED. 9. Jurisdiction — Amount in controversy — Adding interest and costs.] — Action insti- tuted 11th June, 1877, to recover $1,800, with interest from 10th Nov., 1876, and costs, and dismissed in Superior Court. On appeal this judgment was reversed and the company condemned to pay $1,800, with in- terest, $261, and costs then amounting to $602.69. It was contended that the amount involved in the controversy upon the judg- ment appealed from thus amounted to $2,- 663.69, and that an appeal would lie to the Supreme Court of Canada. On application to Monk, J., one of the judges of the court appealed from, the approval of the bond of security for costs on appeal was refused on the ground that the amount in controversy was less than $2,000. — The Supreme Court refused to entertain a petition by way of appeal from this decision. — (See 24 L. C. Jur. 65.) National Ins. Go. v. Black, Cout. Cas. 30. 10. Jurisdiction — Amount in controversy.'] — In an action for $810.54, an overcharge by the society against the plaintiff, on settle- ment of hypothecary obligations charged upon real estate, plaintiff's action was main- tained, and the defendants applied to Tes- sier, J., in the court appealed from, for ap- proval of security upon an appeal to the Supreme Court of Canada. An application for leave to appeal was refused. La So- ciite Permanente de Construction des Ar- tisans V. Ouimet, Cout. Cas. 82. 11. Jurisdiction — Matter in controversy — Discretionary order — R. S. V. c. 129, s. 76 — " Winding-up Act."'] — In order to give a right to appeal under section 76 of the " Winding-up Act," the existing real value of the matter in controversy must be shewn to exceed $2,000. mere supposititious valua- tions canot be accepted. — Where no useful result can be obtained as the result of an appeal, the discretion of the judge should be exercised by the refusal of special leave to appeal under the " Winding-up Act." — [Note. — Cf. Gushing Hulphite Fibre Go. v. Cashing (37 Can. S. C. R. 427.] See also in re Central Bank of Canada (28 Can. S. C. R. 192). Hogaboom v. Central Bank of Canada, Cout. Cas. 119. 12. Jurisdiction — Title to land — Trespass — Action possessoire — Demolition of works — Matter in controversy — R. 8. G. c. 135, s. 29.] — The plaintiff's action was for tres- pass against a neighbour in constructing a roof projecting over the plaintiff's land, for the demolition of the projecting portion of the roof, and a declaration that the plain- tiff was proprietor of the land on which the trespass had been committed. On motion for the approval of security for the costs of an appeal from the judgment dismissing the action. — Held, that, as the title to the land was not in issue nor future rights therein affected, and as it did not appear that the matter in controversy amounted to the sum or value of $2,000, there could be no appeal to the Supreme Court of Can- ada. — [Note. — Cf. The Emerald Phosphate Go. V. The Anglo-Continental Ouano 'Works (21 Can. S. C. R. 422) ; Delorme v. Gusson (28 Can. S. 0. R. 66) ; Parent v. The Que- bec North Shore Turnpike Road Trustees (31 Can. S. C. R. 556) ; Davis v. Roy (33 Can. S. C. R. 345) ; DcHsle v. Arcand (36 Can. S. C. R. 23)]. 2Iacdonald v. Brush, Cout. Cas. 141. 13. Jurisdiction — R. S. C. c. 135, ss. 40, 42—6.0 & 61 Vict. c. 3J, (D.)— Validity of patent — Matter in controversy — Extension of time for appealing — Lapse of order — Practice in office of registrar — Refusal to approve security bond.] — Approval of a bond of security for costs of appeal will be refused in cases where it appears that the court would not have jurisdiction to enter- tain the appeal. — ^There can be no appeal to the Supreme Court of Canada in an ac- tion in respect to a patent of invention where the validity of the patent is not in question and it does not appear that the matter in controversy exceeds $1,000, the amount limited by the Act, 60 & 61 Vict. o. 34 (D.), providing for appeals from the Province of Ontario — Judgment was pro- nounced on 12th April, 1902, and the time for appealing was extended until 30th Juno, 1902. By lan arrangement betw'een the partie.>; the application for allowance of the security bond was not heard until January, 1903, and, on 31st January, 1903, the ap- plication was refused in the court appealed from. — Held, that upon the delivery of the judgment, in January, 1903, the order ex- tending the time for appealing lapsed and no further extension having been obtained, there was no jurisdiction in the Supreme Court of Canada to entertain an appeal brought after the expiration of the sixty days limited by section 40 of the Supreme and Exchequer Courts Act. — The power of extending the time for appealing under sec- tion 42 of the Supreme and Exchequer Courts Act is vested solely in the court appealed from or a judge thereof. Walms- ley V. Griffith (13 Can. S. C. R. 434), re- ferred to. (Note.— Cf. The Ontario and Quebec Railway Go. v. Marcheterre (17 Can. S. C. R. 141), per Strong, J.; Barrett V. Le Syndicat Lyonnais du Elondyke (33 Can. S. C. R. 667), and The Canadian Mutual Loan and Investment Co. v. Le. 47 APPEAL. 48 (34 Can. S. C. R. 224) ] . MacLaughUn v. Lake Erie and Detroit River Ry. Co., Cout. Cas. 297. 14. Jurisdiction — Amount in controversy — Adding interest to judgment — 60 & 61 Vict. c. 34 (D.) — R. 8. 0. (189T) c. 51, s. 116.'] — In an appeal from the Province of Ontario, interest allowed by statute can- not be added to the amount of the judgment recovered in order to make the case appeal- able de piano under the provisions of the Act, 60 & 61 Vict. c. 34 (D.). Toussig- nant v. County of Nicolet (32 Can. S. C. R. 353), followed. Bresnan v. Bisnaw, Cout. Cas. 318. 15. Jurisdiction — Matter in controversy — Patent of invention — Validity of patent — Special leave — R. S. C. c. 61, s. 46.] — Ap- peal from the Court of Appeal for Ontario quashed on a motion to quash the appeal for want of jurisdiction on the grounds that (1) the matter in controversy on the ap- peal, exclusive of costs, was less than $1,000, (2) the validity of the patent was not affected, but a question involved merely as to the construction of a statute, and (3) that special leave to appeal had not been obtained. — The appellants held letters pat- ent of invention for a punching-bag, and respondents, before the patent issued, had purchased a bag and manufactured a num- ber from it. After the issue of the patent, action was brought for infringement in selling what was left of the goods so manu- factured. The respondents relied on R. S. C. (1886), c. 61, s. 46, wbich provides that a person manufacturing the subject matter of the invention, before issue of patent, could see what he had on hand after its issue, and that such sale would not affect the pat- ent as to other persons unless done with the consent of the patentee. The appellants claimed that the consent referred to iond fide manufacture only, and not to a case where the sample was procured fraudu- lently, with the object of infringing the pat- ent, which, to their knowledge, had been applied for. Victor Sporting Goods Co v 'The Harold A. Wilson Co., Cout. Cas. 330. 16. Special leave — Matter in controversy —Discretionary order — Pj-aetice.] — A mo- tion for special leave to appeal was refused on the ground that the questions in contro- versy would not justify the exercise of such judicial discretion.— The appellants were to manufacture and sell carriers and divide the net profits with the respondents, paten- tees of the articles. Profits were divided up to August, 1895, when appellants, claiming a breach of the conditions, treated the con- tract as ended, but continued to manufac- ture and sell. In an action for account, they pleaded termination of the contract ; account stated and settled; statute of limi- tations, and breach by the respondents. The master, on taking accounts, held appellants were licensees ; that the account should only go back to 1901 ; that it should be taken to the time of the issue of the writ, and that the contract was terminated by notice after the judgment on which the reference was made. This report was afiirmed by Street, J., but the Court of Appeal held that ap- pellants were grantees and not licensees ; that the statute of limitations could not be invoked, that the account should be taken to the date of the report and that it was beyond the scope of the Master's functions to decide that the contract was at an end, and even if not, he was wrong, as the facts did not shew a termination. — [Note. — Sub- sequently, an appeal de piano (the amount " in controversy actually exceeding $1,000) was heard and allowed in part without costs. (38 Can. S. C. R. 216).] Hamilton Brass Manufacturing Co. v. Barr Cash and Pack- age Co., Cout. Cas. 382. 17. Jurisdiction — Possessory action ■ — Matter in controversy.] — A motion to quash an appeal was refused in a ease where the respondent, by his possessory action, asked to be declared owner of land in dispute, that the defendant (appellant) should be en- joined against troubling him in his posses- sion thereof, that he should be awarded damages against the defendant, and that the defendant should be ordered to construct his building, adjoining said land, in such a manner as to prevent humidity passing through the walls of an ice-house, or re- move it to such a distance from the boun- dary as to stop the penetration of water therefrom through the soil and into the plaintiff's land. Audette v. O'Gain, Cout. Cas. 423. 18. Jurisdiction — Amount in dispute — Title to land — Future rights — Extending time.] — ^L. had given a mortgage to the Standard Loan and Savings Co. as security for a loan and bad received a certain num- ber of the company's shares. All the busi- ness of that company was afterwards as- signed to the Canadian Mutual L. and I. Co., and L. paid the latter the amount borrowed with interest and $460.80 in addition, and asked to have the mortgage discharged. The company refused, claiming that L. as a shareholder in the Standard L. & S. Co., was liable for its debts and demanding $79.20 therefor by way of counterclaim. At the trial of an action by L. for a declaration that the mortgage was paid and for re-pay- ment of the said $460.80, sucti action was dismissed (1 Ont. L. R. 191), but on appeal, the Court of Appeal ordered judgment to be entered for L. for $47.04 (5 Ont. L. R. 471). The defendants appealed to the Supreme Court. — Held, that the appeal would not lie ; that no title to lands or any interest there- in was in question ; .that no future rights were involved within the meaning of S.-s. (d) of 60 & 61 Vict. ch. 34; and that all that was in dispute was a sum of money less than $1,000 and tterefore not sufficient to give jurisdiction to the court. — Held, also, that application for special leave to appeal cannot be made after expiration of the sixty days from the pronouncing or entry of the judgment appealed from. Canadian Mutual Loan and Investment Co. v. Lee, xxxiv., 224. 19. Jurisdiction — Amount in dispute — Local improvements — Assessment — Title to land — Future rights.] — In proceedings by the City of Montreal to collect the amount assessed on defendants' land together with other lands assessed for local improvements, the defendants filed an opposition to the seizure of their land, alleging that tie claim 49 APPEAL. 50 was prescribed. The opposition was main- tained and the city appealed to the Su- preme Court of Canada. — Beld, that there was nothing in controversy between the par- ties but the amount assessed on defendants' land, and, that amount being less than $2,000, the court had no Jurisdiction to en- tertain the appeal. City of Montreal v. Land and Loan Co., xxxiv., 270. 20. Jurisdiction — Amount in controversy — Future rights.] — ^Ttough the amount in con- troversy on an appeal from the l-'roviuce of Quebec may exceed $2,000 yet if the amount demanded in the action be less the Supreme Court of Canada has no jurisdiction to en- tertain the appeal. — In an action en separa- tion de corps, the decree granted $1,500 per annum as alimony to the wife and, her hus- band having died, she brought suit to en- force the judgment as executory against his universal legatees. Judgment having been given against her by the Court of King's Bench (Q. R. 13 K. B. 97), she sought an appeal to the Supreme Court of Canada. — • Held, that the further payments to which she would have been entitled had she been successful in her suit were not " future rigt ts " which might be bound within the meaning of B.. S. C. c. 135, s. 29. Winteler V. Davidson, xxxiv., 274. 21. Jurisdiction — Amount in controversy — • Costs.] — Where the Court of King's Bench affirmed the judgment of the Superior Court dismissing the action but varied it by or- dering the defendant to pay a portion of the costs. — Held, that, though $2,217 was de- manded by the action, the defendant had no appeal to the Supreme Court of Canada as the amount of tte costs which he was or- dered to pay was less than $2,000. Allan v. Pratt (13 App. Cas. 780), and Monetts v. Lefeivre (16 Can. S. C. R. 387), followed. Beauchemin v. Armstrong, xxxiv., 285. 22. Jurisdiction — Life pension — Amount in controversy — Actuaries' tables.] — The ac- tion was for $62.50, the first monthly instal- ment of a life pension, at the rate of $750 per annum claimed by the plaintiff ; for a declaration that he was entitled to such annual pension from the society, payable by equal monthly Instalments of $62.50 each, during tie remainder of his life; and for a condemnation against the society for such payment during his lifetime. On a motion to quash the appeal, the appellant filed affi- davits shewing that, according to the mortal- ity tables used by assurance actuaries, upon the plaintiff's average expectation of life, the cost of an annuity equal- to the pension claimed would be over $7,000. — Held, fol- lowing Rodier v. Lapierre (21 Can. S. C. R. 69) ; Macdonald v. Galivan (28 Can. S. C. R. 258) ; La Banque du Peuple v. I'rot- tier (28 Can. S. C. R. 422) ; O'Dell v. Gregory (24 Can. S. C. R. 661), and Talbot V. Guilmartin (30 Can. S. C. R. 482), that the only amount in controversy was the amount of the first monthly instalment of $62.50 demanded and, consequently, that the Supreme Court of Canada had no juris- diction to hear the appeal. (See [1906] A. C. 535). Lapointe v. Montreal Police Benevolent and Pension Society, xxxv., 5. 23. Appeal — Jurisdiction — Amount in controversy on appeal — Retraxit.] — The judgment appealed froto condemned the de- fendants to pay $775.40 balance of the amount demanded, less $1,524.60, which had been realized on a conservatory sale of a cargo of lumber made by consent of the parties pending the suit and for which credit was given to the defendants. — Held that as the amount recovered was different from that demanded, and the amount of the original demand exceeded $2,000, there was jurisdiction in the Supreme Court of Can- ada to entertain an appeal. Joyce v. Hart (1 Can. S. C. R. 321); Levi v. Reed (6 Can. S. C. R. 482) ; Leberge v. The Equit- able Life Assurance Society (24 Can. S. C. R. 59), and Kunkel v. Brown (99 Fed. Rep. 593), referred to. Cowen v. Evans (22 Can. S. C. R. 328) ; Cowen v, Evans, Mit- chell V. Trenholme, Mills v. Limoges, Mon- treal Street Railway Co. v. Carriire (22 Can. S. C. R. 331, 333, 334 and 335, rwte) ; Lachance v. 8oci4ti de Pret et des Place- ments (26 Can. S. C. R. 200) and Beau- chemin V. Armstrong (34 Can. S. C. R. 285), distinguished. Dufresne v. Fee, XXXV., 8. 24. Special leave to appeal — Matter in controversy — Assessment of damages — Costs.] — ^Motion was made for special leave to appeal from the judgment of the Court of Appeal for Ontario (6 Ont. Ir. R. 319), reversing the judgment of Ferguson, J. (4 Ont. Ij. R. 350), and ordering judgment to be entered in favour of the plaintiff for damages, assessed at $1,000 with costs. The action was for wrongful dismissal of plain- tiff, the company's selling agent, who was entitled to a fixed salary for the term of his engagement and also a commission on his sales. Before the expiration of the term he was dismissed, without cause, after sales to a large amount had been effected by him. In the court below, the main ques- tion was whether or not, in estimating, the damages, an allowance should be made for commissions upon prospective sales, and it was there held that commissions on sales which might have been effected during the unexpired portion of the term should be taken into consideration. The company sought special leave, on the ground of hard- ship, as costs had accumulated until they exceded $2,000, and also that the damages had been assessed by mere guess and were not justified by any reasonable calculation warranted by the circumstances of the case. The Supreme Court dismissed the applica- tion with costs. Goold Bicycle Go. v. LaisTi- ley, XXXV., 184. 25. Appeal — Jurisdiction — Partial renun- ciation — Conditions and reservations ■ — Amount in controversy — Supreme Court Act, s. 29 — Refusal to accept conditional re- nunciation — Costs on appeal to court below ■^Costs of enquete.] — Where a conditional renunciation reducing the amount of the judgment to a sum less than $2,000 haS not been accepted by the defendant, the amount in controversy remains the same as it was upon the original demande and, if such demande exceeds the amount limited by s. 29 of the Supreme Court Act, an appeal 51 APPEAL. 53 will lie. Montreal Water and Power Co. v. Davie, xxxv., 255. And see Nuisance. 26. Right of appeal — Jurisdiction — Pos- sessory action.'^ — Possessory actions always invoke title to land in a secondary manner and, consequently, are appealable to the Supreme Court of Canada. Pinsonneault V. H4lert (13 Can. S. C. R. 450) ; Gau- thier v. Masson (27 Can. S. C. R. 575) ; Commune de Berthier v. Denis (27 Can. S. C. R. 147) ; Riouy.Riott (28 Can. S. C. R. 52). Couture v. Couture (34 Can. S. C. R. 716), referred to. Culhj v. Ferdais (30 Can. S. C. R. 330) ; The Emerald Phosphaie Co. V. The Anglo-Continental Guano Works (21 Can. S. C. R. 422), and Davis v. Roy (33 Can. S. C. R. 345), distinguished. De- lisle V. Arcand, xxxvi., 23. 27. Jurisdiction — Future rights — Toll hridge — Exclusive limits — Infringement of privilege — Hatter in controversy .'i — The plaintiff's action was for $1,000 for dam- ages for infringement of his toll bridge privileges, in virtue of the Act, 58 Geo. III. e. 20 (I/.C), by the construction of another bridge within the limit reserved, and far the demolition of the bridge, etc. The judg- ment appealed from dismissed the action. On motion to quash the appeal : — Seld, that the matter in controversy affected fu- ture rights and, consequently, an appeal would lie to the Supreme Court of Canada. Galarneau v. Guilbault (16 Can. S. C. R. 579), and Chamberland v. Fortier (23 Can. S. C. R. 371), followed. Rouleau v. Pou- liot, xxxvi., 26. 28. Jurisdiction — Matter in controversy — Warranty of title — Future rights — Hy- pothec for rent charges — R. S. C. c. 135, s. 29.] — In an action for the price of real estate sold with warranty, a plea alleging troubles and fear of eviction under a prior hypothec to secure rent charges on the land does not raise questions affecting the title nor involving future rights so far as to give the Supreme Court of Canada jurisdic- tion to entertain an appeal. The Bamh of Toronto v. Le Cur4 et les Marguillers de la Nativitd (12 Can. S. C. R. 25). Wineherg v. Hampson (19 Can. S. C. R. 369) ; Jer- myn v. Tew (28 Can. S. C. R. 497) ; Wa- ters v. Manigault (30 Can. S. C, R. 304) ; Frechette v. Siinoneau (31 Can. S. C. R. 13) ; Touissignant v. The County of Nico- let (32 Can. S. C. R. 353. and The Cana- dian Mutual Loan and Investment Co. v. Lee (34 Can. S. C. R. 224), followed. L'Association Pharmaceutigue de Qu4'beo v. Livernois (30 Can. S. C. R. 400), dis- tinguished. Carrier v. B'rois, xxxvi., 221. 29. Appeal — Jurisdiction — Controversy involved.} — The action was to compel the Grand Trunk Railway Company to estab- lish and maintain a farm crossing over their line of railway at the place where it sev- ered the plaintiff's land, and for $50 dam- ages. The respondent moved to quash the appeal on the ground that the cost of es- tablishing the crossing together with the damages claimed were less than $2,000, and that the matters in controversy did not bring the case within the class appealable, from the Province of Quebec, under the provisions of the Supreme Court Act. The motion was dismissed. Grand Trunk Rail- way Co. v. Perrault, xxxvi., 671. And see Railways. 30. Jurisdiction — Discretionary order — Stay of foreclosure proceedings — Final fted^ment — ■Controversy involved — " WinS- ing-up Act"—R. 8. C. c. 129, s. 76— R. S. C. c. 135, s. 28.] — Leave to appeal to the Supreme Court of Canada under the sev- enty-sixth section of the " Winding-up Act " can be granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars. A judgment setting aside an order, made under the " Winding- up Act," for the postponement of foreclos- ure proceedings and directing that such pro- ceedings should be continued is not a final judgment within the meaning of the Su- preme Court Act, and does not involve any controversy as to a pecuniary amount. Re Gushing Sulphite Fibre Co., xxxvii., 173. 31. Jurisdiction — Annulment of prods- verbal — Injunction — Matter in controversy — Art. 560 C. C. — Servitude.} — In a pro-, ceeding to set aside resolutions by a muni- cipal corporation giving effect to a prods- verbal, the court followed Toussignant v. County of Nicolet (32 Can. S. C. R. 343), and quashed the appeal with costs. Art. 560 C. C. referred to. Leroux v. Parish of Ste. Justine, xxxvii., 321. 32. Jurisdiction — Wiiiding-up order — Leave to appeal — Ainount involved — R. S. C. c. 129, s. 76.] — In a case under the Winding-up Act (R. S. C. c. 129), an ap- peal may be taken to the Supreme Court of Canada by leave of a judge thereof if the amount involved exceeds $2,000. — Held, thai? _ a judgment refusing to set aside a winding-up order does not involve any amount and leave to appeal therefrom can- not be granted. Gushing & Sulphite-Fibre Co. V. Gushing, xxxvii., 427. 33. Jurisdiction — Intervention — Matter in controversy — Judicial proceeding — R. S. C. c. 135, s. 29 — Equal division of opinion — Dismissal without costs.] — An interven- tion filed under the provisions of the Code of Civil Procedure of the Province of Que- bec is a " judicial proceeding " within the meaning of section 29 of the Supreme and Exchequer Courts Act, and a final judg- ment thereon is appealable to the Supreme Court of Canada where the matter in con- troversy upon the intervention amounts to the sum' or value of $2,000 without refer- ence to the amount demanded by the action in which such intervention has been filed. Walcott V. Robinson (11 L. C. Jur. 308) ; Miller v. Dichene (8 Q. L. R. 18) ; Tur- cotte V. Dansereau (26 Can. S. C. R. 578) ; and King v. Dupuis (28 Can. S. C. R. 388), followed. The Atlantic and ^North-West Railway Co. v. Turcotte (Q. R. 2 Q. B. 305) ; Allan v. Pratt (13 App. S. C. 780) and Kinghorn v. Larue (22 Can. S. C. R. 347) distinguished. — Girouard, J., dissented. — On an equal division of opinion among 53 APPEAL. 54 the judges, who heard the case on the mer- its of the appeal, the appeal stood dismissed without costs. Goto v. The James Richard- son Co., xxxviii., 41. 34. Vacating judgment — Jurisdiction — Matter in controversy — Tierce opposition — Arts. 1185-1188 C. P. Q.—R. 8. C. c. 135, s. 29.] — ^A creditor of an insolvent with a claim for $600 filed a tierce opposition to vacate a judgment declaring the respondent to be the owner of the business of a res- taurant and the liquor license accessory thereto, alleged to be worth over $5,000. The opposition was dismissed on the ground that, under the circumstances of the case, the company had no locus standi to contest the judgment. On motion to quash an appeal to the Supreme Court of Canada. — Held, that as there was no pecuniary amount in controversy an appeal would not lie. Cote V. The James Richardson Co. (38 Can. S. C. R. 41), distinguished. Canadian Brew- eries Co. V. Cari6py, xxxviii., 236. 35. Action for declaration and injunction ~60 & 61 V. c. 34, s. 1 (d)— Municipal corporation — ' Water rates — Discrimina- tion.]— The Act 60 & 61 Vict. 34 (D.) re- lating to appeals from the Court of Appeal for Ontario does not authorize an appeal in an action claiming only a declaration that a municipal by-law is illegal and an injunction to restrain its enforcement. — A by-law providing for special water rates from certain industries does not bring in question " th?" taking of an annual or other rent, customary or other duty or fee " under sec. 1 (d) of the Act (R. S. 0. 1906, ch. 139, sec. 48 (d). City of Hamilton v. Hamil- ton Distillery Co.; City of Hamilton v. Ham- ilton Brewing Association, xxxviii., 239. And see Municipal Corpoeation. 36. Amount in controversy — Creditor's action — Transfer of cheque — Preference] — An action was brought by creditors, on be- half of themselves and all other creditors, of an insolvent to set aside the transfer of a cheque for $1,172.27 made by the insol- vent to S. & Son as being a preference and therefore void. At the trial the action was dismissed and this judgment was affirmed by the Divisional Court (12 Out. L. R. 91) and by the Court of Appeal (13 Ont. L. R. 232') . On appeal to the Supreme Court of Canada : — Held, Girouard, J., dissenting, that the only matter in controversy was the property in the sum represented by the cheque and such sum being more than $1,000 the appeal would lie. Rohinson, Little & Co. V. Scott & Son, xxxviii., 490. 37. Appeal — Jurisdiction — Amount in controversy — Retraxit — R. 8. C. {1906) c. 139, s. /,6 (o).]— In an action for $10,000 damages, a few days before trial and after issues were joined and the case set down for hearing, the plaintiff filed a retraxit re- ducing her claim to $1,999, and gave notice that, at the trial, her claim would be lim- ited to that amount. By the judgment ap- pealed from, the damages awarded to the plaintiff were reduced to $1,333, on account of contributory negligence found by the jury. A motion to quash, on the grounds that the retraxit reduced the amount in con- troversy to less than the appealable limit and that the ease actually tried was for $1,999 only, and, consequently, that, theye could be no appeal under R. S. C. (1906) c. 139, s. 46 (c), was allowed and the ap- peal was quashed with costs. Montreal Parle and Island Ry. Co. v. Lalrosse, xl., 96. 38. Jurisdiction — Supreme Court Act — Duty or fee — Interest in land — Fu- ture rights.] — Under a by-law of the de- fendant company every person desiring to enter the park was required to pay a fee for admission. An action was brought for a declaration as to the right of the company to exact payment of such fee from the lessee of land in the park. — Held, that the matter did not relate to the taking of a " custom- ary or other duty or fee," nor to " a like demand of a general or public nature affect- ing future rights" under sub-sec. (d) of sec. 48 R. S. O. [1906] nor was " the title to real estate ov some interest therein " in question under sub-sec. (a). There was, therefore, no appeal to the Supreme Court of Canada from the judgment of the Court of Appeal in such action (16 Ont. L. R. 386) . Grimshy Parle Co. v. Irving, xli, 35. 39. Actio Pauliana — Controversy involved —Title to land^R. 8. C. [1906] c. 139, s. Jf6.] — In the Province of Quebec, the actio Pauliana, though brought to set aside a contract for sale of an immovable, is a per- sonal action and does not relate to a title to lands so as to give a right of appeal to the Supreme Court of Canada. Lamothe v. Daveluy, xli., 80. 40. Amount in controversy — Reference to assess damages — Final judgment.] — In 1905 L. and others purchased from W. his cream- eries on the faith of a statement purporting to be made up from the books and shewing an output for the years 1904-5 equal to or greater than that of 1903. Having discov- ered that this statement was untrue they brought action for rescission of the con- tract to purchase and damages for the loss in operating during 1906. The judgment at the trial dismissing the action was af- firmed by the Divisional Court. The Court of Appeal reversed the latter judgment, held that rescission could not be ordered but the only remedy was damages and or- dered a reference to assess the amount. On appeal to the Supreme Court of Canada : — Meld, Girouard, J., dissenting, that as it can not be ascertained from the record what the amount in controversy on the appeal was, or whether or not it is within the appealable limit, the appeal does not lie. — Held, per Idington, J. — ^The judgment ap- pealed against is not a final judgment. Per Girouard, J., dissenting. — It is established by the evidence at the trial, published on the record, and admitted by the respective coun- sel for the parties, that the amount in dis- pute exceeds $1,000. The court, therefore, has jurisdiction to hear the appeal. Wenger V. Lament, xli., 603. 41. Jurisdiction — Rivers and sheams — Right of floating logs — Servitude — Facility or license — Possessory action — Injuiiction — Matter in controversy — Practice — Costs — 55 APPEAL. 56 Action.] — In the r*roviiice of Quebec the privilege of floating timber down water- courses, in common with others, is not a predial servitude nor does it confer an ex- clusive right of property in respect of which a possessory action would lie, and, in a case where the only controversy relates to the exercise of such a privilege, the Supreme Court of Canada has no jurisdiction to en- tertain an appeal. — The appeal was quashed without costs as the objection to the juris- diction was not taken by the respondents in the manner provided by the Rules of Practice. Price Brothers & Go. v. Tanguay, xlii., 133. 42. Jurisdiction — Matter in controversy — Municipal franchise — Demolition of water- worlcs — Title to land — Future rights.] — ^The action, instituted in the Province of Quebec, was for a declaration of the plaintiff's ex- clusive right under a municipal franchise to construct and operate waterworks within an area defined in a municipal by-law, for an injunction against the defendants construct- ing or operating a rival system of water- works within that area, an order for the re- moval of water-pipes laid by them within that area, and for $86 damages. On an ap- peal from a judgment maintaining the plain- tiff's action : Seld, Girouard and Idington, JJ., dissenting, that, as it did not appear from the record that the sum or value de- manded by the action was of the amount limited by the Supreme Court Act in respect to appeals from the Province of Quebec nor that any title to lands or future rights were affected, an appeal would not lie to the Supreme Court of Canada. La Compagnie D'Aqueduc de la Jeune-Lorette v. Verrett, xlii., 156. 43. Jurisdiction — Amoimt in controversy -^^Addition of interest to amount of verdict — Btay of execution. Toronto Railway Co. V, Milligan, xlii., 238. 44. Jurisdiction — Matter in controversy — Instalment of municipal tax — Collateral effect of judgment.] — In an action instituted in the Province of Quebec to recover the sum of $1,133.53 claimed as an instalment of an amount exceeding $2,000, imposed on the de- fendant's lands for special taxes, the Su- preme Court of Canada has no jurisdiction to entertain an appeal although the judg- ment complained of may be conclusive in re- gard to the further instalments accruing un- der the' same by-law which would exceed the amount mentioned in the statute limiting the jurisdiction of the Court. Dominion Salvage and Wrecking Go. v. Brown (20 Can. S. C. R. 203) followed. Town of Outremont v. Joyce, xliii., 611. 45. Jurisdiction — D4bats de compte — Issue on redditioii — Amount in controversy.] — An action (taken in the Province of Que- bec) was for an order directing the defend- ant to render an account and, in default of reddition, the plaintiff claimed $1,000. By the judgment appealed from the reddition de compte was ordered and, in default of com- pliance with the order, the defendant was condemned to pay the plaintiff the amount of $1,000 demanded. Held, that the contro- versy was limited to $1,000 and the Supreme Court of Canada had no jurisdiction to en- tertain an appeal. Bell v. Vipond (31 Can. S. C. R. 175) distinguished. St. Aubin v. Desmarteau, xliv., 470. 46. Jurisdiction — Matter in controversy — ■ Damming watercourse — Flooding of lands — Servitude — Damages — Objection to juris- diction — Practice — Costs.] — The plaintiff claimed $300 (the amount awarded by arbi- trators) for damages in consequence of the defendant's dam penning back the water of a stream in such a manner as to flood his lands ; he also asked for the demolition of the dam and an order restraining the de- fendants from thereby causing further injury to his lands. By the judgment appealed from the award was declared irregular, but damages, once for all, were assessed in fai^ our of the plaintiff for $225, recourse being reserved to him in respect of any further right of action he might have for the demo- lition of the dam, etc. On an appeal being taken by the defendants the plaintiff did not move to quash, as provided by Supreme Court Rule No. 4, but took objection, in his factum, to the jurisdiction of the Supreme Court of Canada to entertain the appeal. Held, that the only issue on the appeal was in respect of damages assessed at an amount below that limited for appeals from the Pro- vince of Quebec. The appeal was, conse- quently, quashed, but without costs, as objec- tion to the jurisdiction of the court had not been taken by motion as provided by the Rules of Practice. Price Brothers & Go. v. Tanguay (42 Can. S. C. R. 133) followed. Brompton Pulp and Paper Go. v. Bureau, xlv., 292. 47. Will — Extension of powers of executors — Universal legatee — Special legacy — Juris- diction — Amount in controversy — Order to take accounts — Interlocutory judgment — Costs.] — Appeal from the judgment of the Court of King's Bench, appeal side (Q. R. 19 K. B. 507), by which, Archambeault and Carroll, JJ., dissenting, the judgment of Ohar- bonneau, J., in the Superior Court, District of Montreal, was varied. On a motion to quash the appeal for want of jurisdiction on the grounds : — that the judgment appealed from merely ordered that there should be a taking of accounts ; that there was in con- troversy simply a sum of money which could not be shewn to amount to or exceed the sum of $2,000, being merely a dispute in regard to collection of the rents of buildings by the testamentary executors (respondents) which, at the time of the action, were less than $800 ; that no title to lands or future rights could be affected, and that the judgment ap- pealed from was interlocutory only. The hearing of the motion was ordered to stand over until the hearing of the appeal upon the merits, and, on the appeal coming on for hearing, during the following session of the Supreme Court of Canada, the motion was renewed. After hearing counsel on behalf of both parties, the court decided that it had no jurisdiction to hear the appeal and an order was made quashing the appeal vvith costs to be taxed as if the appeal had been dismissed on the merits. 04n4reux v. Brunean, xlvii., 400. 57 APPEAL. 58 .48. Jurisdiction — " Matter in contro- versy " — • Anmiity — Quebec "Workmen's Compensation Act," R. 8. Q., 1909, Arts. 1321 et seq. — 9 Edw. VII., c. 66 — " Supreme Court Act," B. S. C, 1906, c. 139, s. iG (c) — Construction of statute.} — Plaintiff's ac- tion, under the Quebec " Workman's Compen- sation Act," claimed $450 for loss of earnings, for six months, during incapacity occasioned by personal injuries, and also an annuity of $337 per annum. The plaintiff recovered judgment for the specific amount claimed and ■ he was also awarded an annuity of $247.50, which might be subject to revision, under the statute. The capitalized value of the annuity would, probably, amount to a sum exceeding $2,000, the appealable limi- tation fixed by section 46 (c) of the " Su- preme Court Act," R. S. C, 1906, ch. 139. JSeld, Davies, J., dissenting, that, in the cir- cumstances of the case, it did not appear that the demande amounted to the sum or value of two thousand dollars, within the meaning of section 46 (c) of the " Supreme Court Act," and, consequently, the court had no jurisdiction to entertain the appeal. Tal- lot v. Ouilmartin (30 Can. S. C. R. 482) ; La Cie. d'Agueduc de la Jeune Lorette v. Yerrett (42 Can. S. C. R. 156) ; Lapointa V. The Montreal Police Benevolent and Pen- sion Society (35 Can. S. C. R. 5), and Mao- donald v. Galivan (28 Can. S. C. R. 258), referred to. (Leave to appeal to Privy Council granted, 15th July, 1914). Can- adian Pacific Baihcay Co. v. McDonald, xlix., 163, 49. Jurisdiction — Practice — Title to land — Fraudulent conveyance — Statute of Eliza- ieth.] — In an action to set aside a convey- ance of land by the defendant to his wife as intended to defeat, hinder or delay creditors, no title to real estate is in question to give the Supreme Court of Canada jurisdic- tion to entertain an appeal under sec. 48 (a) of the Supreme Court Act. Duff and Br&deur, JJ., contra. Baterfian v. Scott, liii., 145. 50. Jurisdiction — Court of Review — Arts. 6S and 69 C. P. Q.—" Supreme Court Act," R. S. C. 1906, c. 139, s. |0.]— By article 69 of the Quebec Code of Civil Procedure and the third clause of article 08, as amended by 8 i3dw. VII., chap. 75, an appeal lies to the J.adicial Committee of the Privy Council, in certain cases, from judgments of the Court of Review, where the amount or value of the thing demanded exceeds $5,000. Section 40 of the " Supreme Court Act," R. S. C, 1906, chap. 139, provides for appeals from the Court of Review to the Supreme Court of Canada, in cases which are not appealable to the Court of King's Bench, but are ap- pealable to the Privy Council. Held, Anglin, J., dissenting, that the words "the thing de- manded " in the third clause of article 68 of the Code of Civil Procedure refer to the demande in the action, and not to the amount recovered by the judgment, if they are different; consequently, an appeal lies, in such cases, from the judgments of the Court of Review to the Supreme Court of Canada where the amount or value claimed in the declaration exceeds five thousand dol- lars. Allan V. Pratt (13 App. Cas. 780). Dufresne v. Guevremont (26 Can. S. C. R. 216) ; and Citizens Light and Power Co. v. Parent (27 Can. S. C. R. 316) discussed; Town of Outremont v. Joyce (43 Can. S. C. R. 611) an(3 Dominion Salvage and Wreck- ing Go. V. Brown (20 Can. S. C.R. 203) referred to. Beauvais v. Genge, liii., 353. 51. The Registrar in Chambers — Juris- diction — Assessment and taxation — Adjudi- cation authorized by provincial authority — " Supreme Court Act," R. 8. C, 1906, s. 41 — Finality of provincial decision — " Court of last 7-esort."] — A provincial statute, pro- viding that judgments of courts in the pro- vince on appeal from decisions of courts of revision in respect of assessments for tax- ation purposes shall be final and conclusive on the matters adjudicated upon thereby, does not circumscribe the appellate jurisdiction given to the Supreme Court of Canada in such matters by section 41 of the " Supreme Court Act," R. S. C, 1906, ch. 139. Crown Grain Co. v. Day ((1908) A C. 504) ap- plied. A district court judge, in the Pro- vince of Alberta, ajudicating in matters con- cerning the assessment of property for mvmi- cipal purposes under the provisions oL the North-West Territories Ordinance No. 33, of 1893, as amended by the statutes of Al- berta, ch. 9 of 1909 and ch. 27 of 1913, see. 7, is a " court of last resort created under provincial legislation " within the meaning of section 41 of the " Supreme Court Act,"' R. S. C, 1906, ch. 139, and, consequently, an appeal from the decision lies to the Su- preme Court of Canada when it involves the assessment of property at a value of not les-s than ten thousand dollars. City of Toronto V. Toronto Railway Co. (27 Can. S. C. R. 640) referred 'to as effete, Canadian Niagara Poxccr Co. V. Township of Stamford (50 Can. S. C. R. 168) and Re Heintze, Fleit- man v. The King (52 Can. S. C. R, 15) re- ferred to. Pearce v. City of Calgary, liv., 1. 52. Amount in controversy — Joinder of defendants — Separate contracts.] — A., by order of a master, was allowed to prosecute one action against three insurance companies on three separate policies and obtained from the Appellate Division judgment against each for an amount less than $1,000 though the amounts in the aggregate exceeded that sum. Held, following Bennett v. Havelock Electric Light Co. (46 Can. S. C. R. 840) in that the defendants were in the same position as if a separate action had been brought against each and as none ol; them was made liable for a sum exceeding .$1,000 no appeal would lie to the Supreme Court of Canada. Glen Falls Insurance Co. v. Adams, liv., 88. 53. Jurisdiction — Matter in controversy — "Supreme Court Act," s. 48 (b) and (c) — Action to remove cloud on title — Discharge of mortgage — Deferment of payment of accruing instalments — Title to land — Future rights.] — The judgment appealed from maintained the plaintiff's action brought to obtain an order that it should not be obliged to pay certain deferred in- stalments of the price of land sold to it by the defendants with warranty against all hypothecs, save one for $2,000, until the discharge of certain other incumbrances alleged to be registered as affecting the said 59 APPEAL. 60 lands, and for costs of protest, etc., amount- ing to $33.90. On a motion to quash an appeal taken from' this judgmeu't to the Supreme Court of Canada. Held, (Duff, J., taking no part in the judgment) , that, as there was no amount in controversy of the sum or value of $2,000, nor any matter in controversy relating to the title to the lands or to matters vi^herein future rights thereto might be bound, the Supreme Court of Can- ada had no jurisdiction to entertain the ap- peal under the provisions of section 46, sub- sections 6 and c of the " Supreme Court Act," R. S. C, 1906, ch. 139. Carrier v. Sirois (36 Can. S.C:E,. 221); applied. Mo7i- t'arville Land Co. v. Economic Realty, Limi- ted, liv., 140. 54. The plaintiff Moorehouse brought an action in the Province of Ontario against defendant MoUeur, for balance due on purchase and sale of machinery amounting to $1,100. By an incidental de- mand or counterclaim in the same action, the defendant claimed for loss and damage, in respect of the improper condition of the machinery and otherwise, the sum of over $2,000, The trial judge found for the plain- tiff and dismissed the counterclaim. An action on the said judgment was instituted in the Province of Quebec. The defence now set up by defendant was that he was not personally served with the writ, and that he had not had a fair trial in Ontario, and again set up a counterclaim of over $2,000 and applied to increase same to over $5,000 on ground of facts which came to the know- ledge of defendant subsequent to filing of his plea, although they occurred previous to the institution of the second action. Art. 211 C. P. Q. reads as follows : " Any de- fence which might have been set up to the original action may be pleaded to an action brought upon a judgment rendered in any other Province of Canada, provided that the defendant was not personally served with the action, within such other province, or did not appear in such action." The plain- tiff's action was again maintained and the counterclaim dismissed. This judgment was confii-med by the Court of King's Bench. On appeal to the Supreme Court, after argument of the question of jurisdiction, the following judgment was pronounced by the Chief Jus- tice : " Without expressing any opinion as to whether the defence set up, ' demaiide re convcntionelle,' could be properly pleaded to this action, in view of art. 212 C.P. (on this point I have grave doubts), I would on the facts agree with the trial judge, coniirm the judgment maintaining the plaintiff's action, and dismiss the appeal with costs." Molleur v. Moorehouse, Nov. 17, 1909 ; not reported. Cam. Prac. 257. 55. The plaintiff alleged in his state- ment of claim that the defendants pro- posed to form a syndicate for the pur- chase of 10,000 acres of land in the Province of Saskatchewan, and requested him to sub- scribe for part of the said 10,000 acres, on the agreement and understanding that the defendants would resell the lands at an ad- vance of $2.50 per acre for the numbers of acres each member of the syndicate should subscribe for ; that in accordance with this agreement the plaintiff became a member of the proposed syndicate to the extent of $480. He further alleged that the defendants un- dertook and agreed that if the syndicate was not completed and the 10,000 acres not sub- scribed for, or if the lands remained unsold at an advance of $2.50 per acre, the defend- ants would return the plaintiff the said $480 and the agreement would become null and void and of no effect. The plaintiff alleged that the syndicate was not completed, that claimed in his statement of claim. The de- fendants and he became entitled to the repay- ment of the $480, and this was the amount claimed in his statement of claim. The de- fence was that the plaintiff had agreed to select and purchase a certain number of acres of land at $10.50 per acre payable in instal- ments, and that he paid the first instalment amounting to $480 ; that the plaintiff refused to select the lands or pay the balance of the instalments and that the $480 became for- feited under the terms of the agreement as liquidated riamages. The trial judge found for the plaintiff. The Divisional Court dis- missed an appeal, and a further appeal to the Court of Appeal was also dismissed. Defendants thereupon applied to the Regis- trar, under Rule 1, to affirm the jurisdiction of the Court, but the motion was refused, the Registrar holding that the pleadings in the action did not raise any question of an interest in land within s. 48 ss. (a) of the Supreme Court Act, but was purely and simply a money demand involving the $480. Vide Beauchemin v. Armstronri, supra, p. 264. Carter v. Canadian Northern Ry. Co., Sept. 10, 1911, Cam. Prac. 266. 56. Effect of a retraxit or renunciation.] — The plaintiff's declaration contained a de- mand for $10,000 damages. Before trial the plaintiff filed a retraxit limiting her dam- ages to $1,990. The defendant refused to consent to the retraxit. The case went down to trial without further objection and the re- traxit was referred to in one of the considfir- ants of the judgment in favour of the plain- tiff. No objection was taken to the practice or procedure by which the retraxit was given effect to in the court below when the appeal was taken to the Court of Appeal. Upon the judgment in first instance being affirmed the defendant appealed to the Supreme Court, and the respondent moved to quash. After argument the appeal was quashed for want of jurisdiction. Vide Angers v. Diifioin, '"" fra, p. 294. Montreal Street Ry. v. Labrosse, Feb. 18, 1908. 57. Plaintiff's several claims cannot he added together.] — This was an action brought by the plaintiff on behalf of himself and the shareholders in the de- fondant company in which it was alleged that the defendants other than the company,' had, by a fraudulent scheme, obtained incor- poration of the defendant company, of which the defendants other than Matheson became directors, and as such directors, entered into a fraudulent agreement with defendant, IMatheson, by which the company was to pur- chase certain property belonging to Blathe- pou for $5,000 and to receive from him $1,000 each, with which each should sub- scribe and pay for forty shares of the capital stock of the company of the par value of $25 per share ; and asked that the shares so 61 APPEAL. 62 issued to the said directors should be can- celled, or in the alternative, that they be con- demned to pay $4,700, the amount of their secret and dishonest profits, or the amount unpaid on the stock so subscribed for by them, or that the agreement and the convey- ance between the defendant Matheson and the company be rescinded and the defendants ordered to pay the company $5,000. The trial judgment dismissed the action. The Divisional Court varied this and ordered that the plaintiffs recover against each of the four defendants other than Matheson the sum of $1,000 and costs, and dismissed the action as against the defendant Matheson. This was reversed by the Court of Appeal and the judgment at the trial restored. The plaintiffs then launched the appeal to the Supreme Court and a motion was made to quash for want of jurisdiction. In the reasons against the appeal the plaintiffs, present appellants, began by the words : "The respondents (plaintiffs) submit that the judgment appealed from is right and should be confirmed for the reasons therein mentioned and for the following among other reasons." The sixth reason against the ap- peal said : " The liability of the directors in the circumstances to refund the secret profits is joint and several and they should be charged with interest thereon from the date of its receipt, and the plaintiffs should have a salvage lien upon the funds to be paid into court for costs as between solicitor and client throughout the whole of the action." The motion to quash was allowed. Bennett V. Ilavelock Electric Light d Holcroft, &c. Feby. 22, 1912. Cam. Prac. 278. Vide Glen Falls V. Adams, supra. No. 52. 58. Construction of uiU — Executors and trustees — Poicer of appointment — Jurisdic- tion — Matter in controversy — Special leave to appeal refused, Bradley v. Saunders, Cout. Cas., 380. 59. Jurisdiction — Amount in controversy — Rescission of contract — Adding of interest to give jurisdiction^ Dougall v. Ghouillou. Cout. Cas. 395. 60. Petitory aPtion — Intervention — Title to land — Right of appeal, xxxiv., 282. 61. Company — Purchase of director's property — Secret profit. Bennett v. Have- lock Electric Light Co., xlvi., 640. 4. Costs. 62. Special leave to proceed in forma pau- peris — Dispensing with seourity for costs — Mode of iringing appeal — Construction of statute— 38 Vict. ch. 11 (D.) ss. 24, 28, 31 and 79 — Right of appeal.] — The approval of security for costs is the proper mode of grant- ing leave to appeal to the Supreme Court of Canada. Neither the Supreme Court of Can- ada, nor a judge thereof, has power to grant leave to bring an appeal in formd pauperis or to dispense with security for costs. — The powers given under section 24 of the Supreme and Exchequer Courts Act, 38 Vict. ch. 11 (D.), are restricted to proceedings taken sub- sequently to the institution of the appeal. where the statute and existing rules do not apply ; the procedure may be in conformity with that followed by the Judicial Committee of the Privy Council, but the right of ap- peal arises solely under the statute, which can give no power respecting the exercise of prerogative rights such as may be advised by the Judicial Committee. (Cf. Dominion Cart- ridge Co. V. McArthur, Cout. Dig. 124; Fra- ser V. Ahbott, Cout. Dig. 111.) In re Eraser, Cout. Cas. 6. 63. Matter in controversy on appeal — Satisfaction of claim — Change in position of parties — Question of costs only — Practice — Quashing appeal.'] — It appeared that the claim of the appellant, an intervenant, had been settled, while proceedings were pending, and that the only remaining dispute between the parties was as to costs incurred. On motion by the respondent, the appeal was quashed with costs. Angers v. Duggan, Cout. Cas. 425. 64. Breach of contract — Damages — Evi- dence — Discretionary order hy judge at trial — Interference by court of appeal] — The trial court condemned the defendant to pay $122.50 damages for breach of contract for the sale of goods, but, in view of unneces- sary expenses caused in consequence of ex- aggerated demands by the plaintiffs, which were rejected, they were ordered to bear half the costs. On an appeal by the defendant, the Court of King's Bench varied the trial court judgment by adding .$100 exemplary damages to the condemnation and giving full costs against the defendant : Held, reversing the judgment appealed from, that in the ab- sence of any evidence of bad faith or wilful default on the part of the defendant, there was no jurisdiction for the addition of ex- emplary damages nor for interference with the judgment of trial court. Coglilin v. Fon- derie de Jolictte, xxxiv., 153. 65. Amount in dispute — Interest — Costs — Collateral niattcr.] — An action having been brought against the maker and indorser of a note for $2,000 the makers sued the indorser in warranty claiming that no consideration was given for the note and asking that the indorser guarantee them against any judg- ment obtained in the main action. They also asked that an agreement under which the makers were to become liable for $3,000 be declared null. The two actions were tried together and judgment given for the plain- tiff in the action on the note Avhile the action in warranty was dismissed. On appeal from the latter judgment : Eeld, that the amount in dispute was $2,000, the value of the note sued on ; that the costs of the action in war- ranty could not be added and without them the sum' of £500 was not in controversy even if interest and costs in the main action were added ; the appeal, therefore, did not lie. Held, also, that the agreement which the plaintiffs in warranty sought to avoid was only a collateral matter to the issues raised on the appeal and could not be considered in determining the amount in dispute. Interest after the commencement of the action, unless specially claimed as damages, cannot be added to the amount claimed in the declara- tion in determining the amount in contro- versy for the purposes of giving jurisdiction 63 APPEAL. 64 upon an appeal to the Supreme Court of Canada. Labrosse v. Langlois, xli., 43. 66. The court having withdrawn from the Bench to consider Whether more than a ques- tion of costs was involved, subsequently pro- nounced judgment in the terms of Archhald V. Delisle, 25 Can. S. C. K. at p. 14, as follows : " The case is quite distinguish- able from those of Moir v. Huntingdon, 19 Can. S. C.K. 363; and McKay v. The Township of Hinchinhrooke, 24 Can. S. C. K. 55. What we held in those cases was that where the state of facts upon which a litigation went through the lower courts has ceased to exist, so that the party appeal- ing has uo actual interest whatsoever upon the appeal, but an interest as to costs, and where the judgment upon the appeal, what- ever it may be, cannot be executed or have any effect between the parties except as to costs, this court will not decide abstract propositions of law merely to determine the liability as to costs." Delta v. Vancouver Rij. Co., Oct. 11th, 1909. (Not reported.) Cam. Prac. 90. 67. Appeal from Court of Review — Juris- diction — Amount in controversy — Addition of cost of exhiiits — Practice.'] — The cost of exhibits (claimed by the action), which may be taxable as costs in the cause between party and party, cannot be added to the amount of the deviande in order to increase the amount in controversy to the sum or value necessary to give the right of appeal to the Supreme Court of Canada. Dufresne V. Gu^vremont (26 Can. S. C. R. 216), fol- lowed. Montreal Tramnays Co. v. McOill, liii., 390. 68. In a proper case the^ Supreme Court will order costs to be paid as between so- licitor and client. In re Sprague, Cam. Prac. xiii. 69. Jurisdiction — Amount in controversy, xxxiv., 285. See supra, 21. 70. Special leave — Controversy involved, XXXV., 184. See supra, 24. 71. Equal division of opinion — Dismissal without costs, xxxviii., 41. See supra, 33. 72. Practice — Equal division of opinion — Costs, Cout. Cas. 325. See Costs. 73. Company — Dominion corporation — Provincial registration — Juristic disability — Right of action — Contract — Carrying on business within province — Legislative juris- diction — R.S. Sask. 1909, c. 73, ss. 3, 10 — Non-compliance with S.C. Rules — Costs. Linde Can. Refrig. Co. v. Sask. Creamery Co., li., 400. See Company. 5. Court Appealed Feom. 74. Mines and minerals — Trespass — Boundary — Hillside claim — Jurisdiction — Appeal per solium — Practice.} — Appeal di- rect from the judgment of Dugas, J., in the Yukon Territorial Court, which maintained the plaintiff's action for trespass and the re- moval of gold-bearing gravel by the defend- ants, who tunnelled from an adjoining claim into a claim owned by the plaintiffs. The principal dispute was as to the location of the defendant's hill-side claim under the mining regulations of 1898. During the hearing, on suggestion by the court and consent of par- ties, leave to appeal per saltum was granted. nunc pro tunc, without costs, as there was some doubt as to the jurisdiction to hear the appeal direct from' the decision of the trial court. A cross-appeal by the plaintiffs was abandoned at the hearing. The appeal was dismissed with costs, Armour, J., dissenting. Trahold v. Miller, Cout. Cas. 281. 75. Jurisdiction — Land Titles Act — " Torrens System " — Involuntary transfers — Registry laws — Confirmation of tax sale — Persona designata — Court of original juris- diction — Interlocutory proceedings.] — The confirmation of a tax sale transfer by a judge of the Supreme Court of the North-West Territories, under section 97 of the " Land Titles Act, 1894," is a matter of proceeding originating in a court of superior jurisdiction and an appeal will lie to the Supreme Court of Canada 'from a final judgment of the full court affirming the same. City of Halifax V. Reeves (23 Can. S. C. R. 340) followed. Sedgewick and Killam, JJ., contra. North British Canadian Inv. Co. v. Trustees of 8t. John School District No. 16, North West Territories, xxxv., 461. 76. Time limit for appeal to King's Bench — Opposite party appealing to Court of Re- view—Arts. 927, 1203, 1209 C. P. Q.— Prac- tice — Injunction — ■ Discretionary order — Reversal on appeal — Question of costs only.] — An appeal from a judgment of the Superior Court, rendered on the trial of a cause, will lie to the Court of King's Bench, appeal side, if taken within the time limited by article 1209 of the Code of Civil Procedure of Que- bec, notwithstanding that, in the meantime, on an appeal by the opposite party, the Court of Review may hare rendered a judgment affirming the judgment appealed from. — Al- though the granting of an order for injunc- tion, under article 957 of the Code of Civil Procedure of Quebec, is an act dependent on the exercise • of judicial discretion, the Su- preme Court of Canada, on an appeal, re- versed the order on the ground that it had been improperly made upon evidence which shewed that the plaintiff could, otherwise, have obtained such full and complete remedy as he was entitled to under the circumstances of the case, Davies and Idington, JJ., dis- senting, were of opinion that the order had been properly granted. — On the merits of the appeal, Davies and Idington. JJ., dissented from the majority of the court on the ground that as a question of costs only was in- volved on the appeal, it should not be enter- tained. Chicoutimi Pulp Co. v. Price, xxxix., 81. And see Pleading — Practice. 77. Appeal — Stated case — Provincial legis- lation — Assessment — Municipal tax — For- eign company — " Doing business in Eali- 65 APPEAL. 66 fax."] — An Ontario company resisted the im- position of a license fee for " doing business in tlie City of Halifax " and a case was stated and submitted to the Supreme Court of Nova Scotia for an opinion as to such liability. On appeal from the decision of the said court to the Supreme Court of Canada counsel for the City of Halifax contended that the pro- ceedings were really an appeal against an assessment under the city charter, that no appeal lay therefrom to the Supreme Court of the Province, and, therefore, and because the proceedings did not originate in a super- ior court, the appeal to the Supreme Court of Canada did not lie. Held, per Fitzpat- rick, C.J. and Duff, J., that, as the appeal was from the final judgment of the court of last resort in the province, this court had jurisdiction under the provisions of the Su- preme Court Act, and it could not be taken away by provincial legislation. — Per Davies, J. — Provincial legislation cannot impair the jurisdiction conferred on this court by the Supreme Court Act. In this case the Su- preme Court of Nova Scotia had jurisdiction under Order XXXIII., Rule 1 of the Judi- cature Act. Per Idington, J. — If the case was stated under the Judicature Act Rules the appeal would lie, but not if it was a sub- mission under the charter for a reference to a judge at request of a ratepayer. City of Balifaao v. McLaughlin Carriage Co., xxxix., 174. And see Assessment and Taxes. 78. Collection of municipal taxes — Action in Recorder's Court — Montreal city charter, 62 V. c. 58 (Que.) — Jurisdiction — Judgment ly Court of Review — Special tribunal — Court of last resort — Supreme Court Act, B. S. [1906] c. 139, s. .^i.]— Under the pro- visions of the Montreal City Charter, 62 Vict. ch. 58, sec. 484 (Que.), an action was brought by the city, in the Recorder's Court, to recover taxes on an assessment of the company's property in the city. Judgment was recovered for $39,691.80, and an appeal to the Superior Court, sitting in review, un- der the provisions of the Quebec statute, 57 Vict. ch. 49, as amended by 2 Edw. VII. ch. 42, was dismissed. On an application by the company to affirm the jurisdiction of the Supreme Court of Canada to hear an appeal from the judgment of the Court of Review, Seld, that the Superior Court, when exer- cising its special appellate jurisdiction in reviewing this case, was not a court of last resort created under provincial legislation to adjudicate concerning the assessment of pro- perty for provincial or municipal purposes within the meaning of section 41 of " The Supreme Court Act," R. S. [1906] ch. 139, and, consequently, there could be no juris- diction to entertain the appeal. Montreal Street Ry. v. City of Montreal, xli., 427. 79. Jurisdiction — Court of Review — Re- duction of damages — Confirmation of Su- perior Court judgment — R. S. G. [1906] c. 139, s. JjO.] — There can be no appeal to the Supreme Court of Canada from a judgment of the Court of King's Bench, appeal side, quashing an appeal from the Superior Court, sitting in review, for want of jurisdiction. City of Ste. Cunigonde v. Gougeon (25 Can. s.c.D. — 3 S. C. R. 78) followed, Idington, J, dissent- ing. In an action for damages where the plaintiff obtains a verdict at the trial and the Court of Review reduces the amount awarded thereon the judgment of the Super- ior Court is confirmed and, therefore, no ap- peal lies to the Court of King's Bench, but there might be an appeal from the judgment of the Court of Review to the Supreme Court of Canada. Simpson v. Palliser (29 Can. S. C. R. 6) distinguished. Idington, J., dis- senting. Hull Electric Co. v. Clement, xli., 419. 80. Jurisdiction — Judgment of Court of Review — • Modification of trial judgment — Affirmance — " Supreme Court Act," R. S. C, 1906, c. 139, s. ^0.] — An action to restrain the flooding of the plaintiff's land from the defendants' railway ditch, was maintained by the Superior Court and an order made directing the railway company to construct the necessary works to cause the trouble to cease within a time mentioned, failing which the plaintiil was authorised to do the works at the company's expense. On an appeal from this judgment, the Court of Review, of its own motion, added more specific direc- tions as to the works to be done and, instead of authorizing the plaintiff to construct the works, in case of default, reserved his re- course for future damages and dismissed the appeal. Held, that the judgment of the Court of Review had confirmed that of the court of first instance and, therefore, an ap- peal therefrom would lie to the Supreme Court of Canada under the provisions of sec- tion 40 of the " Supreme Court Act," R. S. C. 190, ch. 139. Hull Electric Co. v. Clement (41 Can. S. C. R. 419), followed. Canadian 'Northern Quciec Ry. Go. v. Gignac, li., 186. 81. Jurisdiction — Prolate Court — Sur- rogate Court — R. 8. G. [1906] c. 139, s. 37 (d) .] — Under the terms of section 37 (d) of the "Supreme Court Act" an appeal lies to the Supreme Court of Can- ada from the judgment of the Appellate Division of the Supreme Court of Ontario in a case originating in a Surrogate Court of that province. Idington, J., dubitante. On the merits the judgment of the Appellate Division (.S2 Ont. L. R. .312) was aflirmcd. Trusts & Guarantee Co. v. Rundle, lii., 114. 82. Held, that the jurisdiction of the Court of Revision and of the courts exercising the statutory jurisdiction of appeal from' the Court of Revision, is confined to the question whether the assessment was too high or too low, and these courts had no jurisdiction to determine the question whether the assess- ment commissioner had exceeded his powers in assessing property which was not by law assessable. In other words, when the as- sessment was o6 initio a nullity, they had no jurisdiction to aifirm it or give it validity. Toronto Ry. Co. v. Toronto (1904), A C 809, Cam. Prac. 187. 83. Expropriation — Award — Choice of forum — Curia designata, xxxviii., 511. See supra, 7. 67 APPEAL. 68 6. Criminal Appeals. 84. Extradition — Prohibition — Appeal — Jurisdiction — Supreme Court Act, s. 24 (g)-:-5Jf £ 55 Vict. c. 25 s. 2 — Construction of statute — PutUc policy — Criminal proceed- ings.] — A mation for a writ of prohibition to restrain an extradition commissioner from investigating a charge of a criminal nature upon which an application for extradition has been made is a proceeding arising out of s. 24 (g) of the Supreme Court Act, as amended by 54 & 55 Vict. c. 25, s. 2, and in such a case, no appeal lies to the Supreme Court of Canada. In re Woodhall (20 Q. B. D. 832), and Hunt v. The United States (16 U. S. R. 424) referred to. (A petition for leave to appeal to Privy . Council was ■abandoned and dismissed, 26th July, 1905). Oaynor and Oreene v. United States of America, xxxvi., 247. 85. Criminal law — Grown case reserved — Appeal — Extension of time for notice of ap- peal — " Criminal Code " s. 1024 — Order after expiration of time for service of notice — Jurisdiction.^ — The power given by section 1024 of the "Criminal Code" (R. S. C. (1096) c. 146) to a judge of the Supreme Court of Canada to extend the time for ser- vice on the Attorney-General of notice of an appeal in a reserved Crown case may be exercised after the expiration of the time limited by the code for the service of such notice. Banner v. Johnston (L. R. 5 H. L. 157) and Vaughan v. Richardson (17 Can. S. C. R. 703) followed. Gilbert v. The King, xxxviii., 207. 86. Practice — Croivn case reserved — jBe- served questions — Dissent from afflrmance of conviction — Jurisdiction.] — Two questions were reserved by the trial judge for the opin- ion of the court of appeal but he refused to reserve a third question, as to the correct- ness of his charge on the ground that no ob- jection to the charge had been taken at the trial. The court of appeal took all three questions into consideration and dismissed the appeal, there being no dissent from the affirmance of the conviction on the first and third questions, but one of the judges being of opinion that the appeal should be allowed and a new trial ordered upon the second question reserved. On an appeal to the Su- preme Court of Canada, — The majority of the court, being of opinion that the appeal should be dismissed, declined to express any opinion as to whether or not an appeal would lie upon questions as to which there had been no dissent in the court appealed from, but it was Held: Per Girouard, J. — That the Su- preme Court of Canada was precluded from expressing an opinion on points of law as to which there had been no dissent in the court appealed from. Mcintosh v. The Queen (2S Can. S. C. R. 180) followed. Yiau v. The Queen (29 Can. S. C. R. 90). The Union Colliery Company v. The Queen (31 Can. S. C. R. 81) and Bice v. The King (32 Can. S. C. R. 480) referred to. Gilhert v. The King, xxxviii., 284. And see Criminal Law. 87. Criminal law — Stated case — Dissent in court of appeal — Practice — Special leave for appcal—R. S C. (1908) c. 139, s. 37 (c).] — In an appeal from the judgment of the Supreme Court of the North-W«st Terri- tories, in tone, whereby the conviction of the respondent was quashed, two of the judges dissenting, special leave for the appeal was granted on motion before the full court, un- der the provisions of R. S. C. (1907) c. 139, s. 39 (c) on the 19th of February, 1907. Lafferty v. Lincoln, xxxviii., 620, 625. And see Constitutional Law. 88. Criminal law — Reserved case — Appli- cation " during trial " — Grim. Code s. lOH (3).]— By s. 1014 (3) of the Criminal Code either party may " during the trial " of a prisoner on indictment apply to have a ques- tion which has arisen reserved for adjudica- tion by the Court of Appeal : Held, that for the purposes of such provision the trial ends with the verdict after which no such appli- cation can be entertained. Ead v. The King, xl., 272. 89. Criminal law — Stated case — Exten- sion of time — Notice of appeal — Criminal Code, ss. 901, lOU, 1021, 1022, 102Jf.]— Where, on an application under section 901 of the Criminal Code, the court, in the exer- cise of judicial discretion, has refused to allow a postponement of the trial of the person indicted, there can be no review of the decision by an appellate court and the question presented does not constitute a question of law upon which there may be a reserved case under the provisions of sec- tion 1014 of the Criminal Code. Judgment appealed from (5 W.W.R. 1229; 26 West. L. R. 955) aflEirmed. The Queen v. Charles- worth (1 B. & S. 460) ; Winsor v. The Queen (L. R. I. Q. B. 390) ; Rex v. Lewis (78 L. J. K. B. 722) ; Rex v. Blyth (19 Ont. L. R. 386). Reg. v. Johnson (2 C. & K. 354) ; and Reg. v. Slavin (17 U.C.C.P. 205) referred to. Mulvihill v. The King, xlix., 587. 90. Criminal law — Refusal of reserved case — Appeal to Supreme Court of Canada — Conviction in Yulcon Territory — Admis- sion of evidence — Procedure at trial. Lor belle V. The King, Cout. Cas. 282. 91. Criminal law — Trial for murder — Im- proper admission of evidence — Substantial ivrong or miscarriage — Criminal Code s. 1019, xliv., 331. See Criminal Law. 92". Criminal laic — Indietment for murder — Trial — Ecidence — Criminal iiittent — Pro- vocation — '■ Heat of passion " — Charge to jury — Misdirection — Reducing charge to manslaughter — New trial — "Substantial wrong " — Criminal Code ss. 261, 1019 — Questions to be revieiced on appeal, xlvii., 1. See Criminal Law. 7. Cross-appeal. 93. Cross-appeal between respondents — Practice.] — The action was against the two defendants, jointly, and the plaintiff obtained a verdict, at the trial, against both. The Court of Appeal confirmed the verdict as 69 APPEAL. 70 to McN., and dismissed the action as to the other defendants. McN. appealed to the Su- preme Court of Canada, making the other defendants respond«nts on his appeal. — Held, that the plaintiff, respondent, was entitled to cross-appeal against the said defendants, re- spondents, to have the verdict against them at the trial restored. (Leave to appeal to Privy Council refused, 12th March, 1908.) McNichol V. Malcolm, xxxix., 265. And see Landiokd and Tenant. 94. Quare.] — On the appeal by C. against the judgment declaring him liable to account for illegitimate profits on the transactions in question, had the Supreme Court of Can- ada jurisdiction to entertain a cross-appeal by P. to obtain recourse against M. who had been exonerated in the court below and was not made a party to the appeal taken by C. ? McNichol v. Malcolm (39 Can. S. C. R. 265) discussed. (Joy v. Pommevinke, xliv, 543. And see Broker. 8. Discretionary Orders. 93. Practice — Discretion of court helow — Amendment — Formal jiidgment.] — The Su- preme Court should not interfere with the exercise of discretion by a provincial court in refusing to amend its formal judgment. Such amendment is not necessary in a min- ing case where the mining regulations oper- ate to give the judgment the same elfect as it would have if amended. Creese v. Fleisch- man, x.xxiv., 279. 96. Appeal per sultum — Special leure — Discretion — Revieic of whole case on ap- plication for lea re — Vexatious proceedings — Want of merits — Expiration of time for ap- pealing.] — Where it appeared that an appeal was utterly without merits, leave to appeal per saltuni was refused, and it was declared that, in such a case, the circumstapces could not justify an order extending the time for appealing. Kilner v. Werden, Cout. Cas. 188. 97. Special leave to appeal — Discretion — Matter in controrersy.] — Motion for special leave to appeal was refused when applied for in regard to a mandatory order respect- ing the running of ears and extensions of the tramway, the questions not being of a char- acter to warrant the exercise of discretion in giving special leave. London Street Ry. Co. V. City of London, Cout. Cas. 322. 98. " Winding-up Act " — Leave to appeal — Discretion — Construction of. Dominion statutes — Appeal de piano — R. S. C. (1888) c. 129, s. 76'.] — Where an important ques- tion respecting the construction of a Domin- ion statute is involved, the discretion allowed by section seventy-six of the " Winding-up Act " should be exercised and leave to appeal granted, but that Act does not give the right of appealing de piano. The Lake Erie and Detroit 'River Railway Co. 'v. Marsh (85 Can. S. C. R. 197), followed. In re Mont- real Cold Storage and Freezing Co.; Ward V. Mullin, Cout. Cas. 341. 99. Practice — Amendment of pleadings — Discretionary order — Procedure — Final judgment.} — Wlieru no injustice had been done in the refusal of leave to amend plead- ings, the court refused to interfere with the orders made by the courts below in the exer- cise of judicial discretion and quashed the appeals. Cass v. Couture; Cass v. McCut- cheon, Cout. Cas. 386. 100. Order for new trial — Weight of evi- dence — Discretion — New grounds on appeal.] — Where the court whose judgment is ap- pealed from' ordered a new trial on the ground that the verdict was against the weight of evidence : Held, that this was not an exer- cise of discretion with which the Supreme Court of Canada would refuse to interfere and the verdict at the trial was restored. — The argument of an appeal to the Supreme Court of Canada must be based on the facts and confined to the grounds relied on in the courts below. Confederation Life Assoeiar Hon v. Borden, xxxiv., 338. 101. Frivolous and vexatious proceedings — Quashing appeal — .Jurisdiction of Supreme Court of Canada — R. S. C. c. 135, ss. 27, 59 —Arts. 651 and 126 C. P. Q.]— An appeal to the Supreme Court of Canada, taken in bad faith, will be quashed, on motion by the respondent. — Per, Girouard, J. — An order by a judge under art. 651 C.P.Q., dismissing an opposition, as being in bad faith, is a matter in the exercise of judicial discretion, and the Supreme Court of Canada, under section twenty-seven of the Supreme Court Act, is deprived of jurisdiction to entertain an ap- peal therefrom. Fontaine v. Payette, xxxvi., 613. And see Opposition. 102. .Jurisdiction — Discretion of Governor in Council — Stated ease — Raihray subsidies — Construction of statute — 3 Edu\ Til. c. 57 — Conditions of contract — Estimating cost of constructing line of raihray — Rolling stock and equipment.] — Where the jurisdic- tion of the Supreme Court of Canada to en- tertain an appeal was in doubt, but it was considered that the appeal should be dis- missed on the merits, the court heard and decided the appeal accordingly. (Cf. Bain V. Anderson d Co. (28 Can. S. C. R. 481). Canadian Pacific Ry. Co. v. The King; Re Pheasant, Hills Branch, xxxviii., 137. And see Railways. 103. In an accident case, a motion for non- suit was refused and judgment was entered for the plaintiff on the findings of the jury. The defendants appealed, simply asking that the judgment be reversed and the action dis- missed. The Court of Appeal granted a new trial. On appeal to the Supreme Court the Chief Justice and Anglin, J., thought the judgment for new trial was made in the discretion of the Court below and no appeal would lie. A majority of the Court dis- missed on the merits. Canadian Pacific Ry. Co.. V. Lloyd-Broicn, Cam. Prac. 123. 104. Order hy judge at trial — Interference on appeal — Exemplary damages, xxxiv., 153. See supra, 64. 71 APPEAL. 72 105. Appeal — Practice — Exception — Art. 1B20 G. P. Q. — Acquiescence — Motion to quash — Discretion of court heloic^Vary- ing minutes of judgment — Costs, xxxiv., 502. &'ee Pkaotice. 106. Stay of foreclosure proceedings — Final judgment — " Winding-up Act," xxxvii., 17a. See supra, 30. 107. Judicial sale of railways — Interested ■bidder — Disqualification as purchaser — Counsel and solicitors — Art. llt&^ C. G. — Construction of statute — Review, hy appel- late court — Discretionary order — It d; o Jildw. VII. c. 15ti (D.) — Fuolio policy, xxxvii., 303. See Railways. 108. Appeals ly both parties — Different Courts of Appeal — Costs — Practice, xxxix., 81. See supra, 76. 109. " Winding-up Act " — Insolvent bank — Appointment of liquidators — Appointing another hank — Discretion of judge. Cam. Cas. 200. See " Winding-up Act." 110. Refusal of special leave — Contro- versy — Winding-up Act, Gout. Cas. 119. See supra, 11. 111. Special leave — Controversy — Prac- tice, Cout. Cas. 382'. See supra, 16. 9. Election Appeals. 112. Controverted election — Right of ap- peal — Fixing time for trial.} — No appeal lies to the Supreme Court of Canada from an order of the judges assigned to try an election petition fixing the date for trial. Halifax Election Cases, xxxix., 401. 113. Election law — Preliminary objections — Interlocutory motions — Construction of statute — "Dominion Controverted Elections Act," R.S^C, 1906, c, 7, s. 6^.]— Several of the preliminary objections to a petition against the election of a member of the House of Commons of Canada having re- mained undisposed of, on the day before the expiration of the six months limited for the commencement of the trial by section 39 of the " Dominion Controverted Elections Act," R. S. C, 1906, ch. 7, the petitioner applied to a judge, by motions, (a) to obtain an en- largement of the time for the commencement of the trial, and, (6) to have a day fixed for the hearing on such preliminary objec- tions. On appeal from the judgment dis- missing the motions. Held, that the judg- ment in question was not appealable to the Supreme Court of Canada under the pro- visions of section 64 of the " Dominion Con- troverted Elections Act." L'Assomption Election Case (14 Can. S.C.R. 429) ; King's County Election Case (8 Can. S.C.R. 192) ; Gloucester Election Case (8 Can. S. C. R. 204) , and Halifax Election Case (39 Can. S. C. R. 401) referred to. Temiscouata Election, xlvii., 211. 114. Controverted election — Jurisdiction — Practice. Re Stewart, Cout. Cas. 21. 115. Controverted election — Abatement of appeal — Dissolution of Parliament — Return of deposit — Practice, Cout. Cas. 314. See Election Law. 116. Election law — Preliminary objec- tions — Rules of practice — Repeal— Incon- sistency with statutory provision — Judgment on preliminary objections — Final determinor tion of stage of cause — Objections — Irregu- larity by returning officer— Jurisdiction — Issues in question — Construction of statute — (.D.) 37 V. c. 10, ss. U, 45— R. S. C, 1906, c. 7, ss.. 16, 19, 20, 85— R. S. C, 1906. c. 1, s. 20, xlviii., 625. See Election Law. 10. Pinal Judgments. 117. Jurisdiction — Supreme Court Act (1875) 38 Vict. c. 11— Demurrer — Final judgment — Costs.'] — On appeal from a judg- ment overruling a demurrer (12 N. S. Rep 376; Russ. Eq. Dec. 287) ; Held, per Pour- nier, Taschereau and Gwynne, JJ. (Ritchie, C.J. and Strong, J., contra) , that, under the circumstances, the judgment appealed from did not dispose of the matters in controversy finally ; and the appeal was quashed for want of jurisdiction under the Supreme Court Act of 1875, with costs of a motion to quash. (Cf. 7 App. Cas. 178.) West- ern Counties Railway Co. v. Windsor ani Annapolis Railway Co., Cout. Cas. 11. 118. Jurisdiction — Final judgment — Man- damus.] — The respondent applied for a per- emptory writ of mandamus to compel appel- lants to purchase lands for the site of a par- ish church, and obtained an order, as fol- lows — " Vu la requfite ci-dessus, il est or- donn6 d'emaner un bref de mandamus tel que damandg." An ordinary writ of sum- mons issued, indorsed as a writ of manda- mus, but the copy served did not contain any indorsement of the nature of the claim. An exception to the form was dismissed, and the Court of Queen's Bench dismissed an appeal de piano. " Parceque 1. Les appelants ont iuseript en appel de I'ordonnance dt juge permettant remission du bref de mandamus en cette cause, sans au prfialable obtenir la permission ; 2. Parceque la dite ordonnancc n'est pas un jugment final, mais une inter- locutoire." The registrar, considering that the order was not simply for the issue of a summons, but a peremptory order for the issue of a writ of mandamus, under art. 996 C. P. Q., held that the judgment was final in its nature, and therefore, appealable. This decision was reversed, on appeal, and the application for approval of the security for costs was dismissed. Syndics^ de St. Valier v. Catellier, Cout. Cas. 202. 119. Commissioner of Mines — Appeal from decision — Quashing appeal — Final judg- ment — Estoppel — Manmmus.} — Where an 73 APPEAL. 74 appeal from a decision of the Commissioner of Mines for Nova Scotia on an application for a lease of mining land is quashed by- the Supreme Court of the province on the ground that it; was not a decision from which an ap- peal could be asserted, the judgment of the Supreme Court is final and binding on the applicant, and also on the commissioner even if he is not a party to it. — The quashing of the appeal would not, necessarily, be a deter- mination that the decision was not appeal- able if the grounds stated had not shewn it to be so. — In the present case, the quashing of the appeal precluded the commissioner or his successor in office from afterwards claim- ing that the decision was appealable. — If the commissioner, after such appeal is quashed, refuses to decide upon the appli- cation for a lease, the applicant may com- pel him to do so by writ of mandamus. Judg- ment appealed from (36 N. S. Rep. 275) affirmed. Drysdale v. Dominion Coal Co., xxxiv., 328. 120. Opposition afin de charge — Order for security — Interlocutory judgment — Res judicata— Sutsequent final ordei — Revision of merits on appeal — Practice.] — An order requiring opposants afin de charge to furn- ish security that lands seized, if sold in exe- cution subject to the charge, should realize sufficient to satisfy the claim of the execu- tion creditor was held to be interlocutory and non-appealable (33 Can. S. C. R. 340). Subsequently, upon default to furnish such security, the opposition was dismissed. On appeal from the judgment of the Court of King's Bench affirming the order for the dis- missal of the opposition : Held, that, under the circumstances, the order dismissing the opposition was the only one which could be properly made and that the merits of the former order could not be reviewed on appeal from the final judgment, Desaulniers v. Payette, xxxv., 1. 121. Appeal — Jurisdiction — Interlocu- tory proceeding — Final judgment.] — There is no appeal to the Supreme Court of Can- ada from a judgment on a petition for leave to intervene in a cause as the proceeding is merely interlocutory in its nature. Samel V. Samel (26 Can. S. C. E. 17) followed. Connolly v. Armstrong, xxxv., 12. 122. Infringement of patent of invention — Exchequer Court Act, ss. 51 and 52 — Order postponing hearing of demurrer ■ — Judgment — Leave to appeal.] — Unless an order upon a demurrer be a decision upon the issues raised therein, leave to appeal to the Suprenie Court of Canada cannot be granted under the provisions of the fifty- first and fifty-second sections of the Ex- chequer Court Act, as amended by 2 Bdw. VII. c. 8. Toronto Type Foundry Co. v. Mergenthaler Linotype Co., xxxvi., 593. 123. Jurisdiction — Successions — Secwity by heneficiary — Controversy involved — Future rights — Interlocutory order.] — An application for the approval of security on an appeal to the Supreme Court of Canada from an order directing that a beneficiary should furnish the security required by ar- ticle 663 of the Civil Code of Lower Canada was refused on the ground that it was in- terlocutory and could not affect the rights of the parties interested. KirkpatricTc v. Birks, xxxvii., 512. 124w Jurisdiction — Declinatory exception — Interlocutory judgment — Review of judg- ment on exception — Practice.] — The action was dismissed in the Superior Court upon declinatory exception. The Court of King's Bench reversed this decision and remitted the cause for trial on the merits. On motion to quash a further appeal to the Supreme Court of Canada : Held, that such motion should be granted on the ground that the objection as to the jurisdiction of the Su- perior Court might be raised on a subse- quent appeal from a judgment on the merits. —Per Girouard, J. — The judgment of the Court of King's Bench was not a final judg- ment and, consequently, no appeal could lie to the Supreme Court of Canada. Willson V. Shawinigan GarMde Co., xxxvii., 535. 125. Jurisdiction — Demurrer — Final judg- ment.] — The declaration in an action by a municipality claiming forfeiture of a fran- chise for non-fulfilment of the obligations imposed in respect thereof alleged in five counts as many different grounds for such forfeiture, The defendant demurred gener- ally to the declaration and specifically to each count. The demurrer was sustained as to three counts and dismissed as to the other two. On appeal from the decision of the registrar refusing an order to affirm the jurisdiction of the Supreme Court to enter- tain an appeal from the judgment maintain- ing the demurrer : Seld, that each count contained a distinct ground on which for- feiture could be granted and a judgment de- priving the municipality of its right to' reply on any such ground was a final judgment in respect thereof which could be, appealed to the Supreme Court of Canada. Ville de St. Jean v. Molleur, xl., 139. 126. Jurisdiction — Final judgment-!— Time for appealing — Exchequer Court Act, R. S. C. (1906) c. HO, s. 82— Exchequer Court rules.] — Notwithstanding that no appeal has been taken from' the report of a referee with- in the fourteen days mentioned in sections 19 and 20 of the General Rules and Orders of the Exchequer Court of Canada (12th December, 1899) , an appeal will lie to the Supreme Court of Canada from an order by the judge confirming the report, as required by the said sections, within the thirty days limited by section 82 of the Exchequer Court Act, R. S. C. (1906) ch. 140. Re Atlantic & Lake Superior Ry. Co.; North Eastern Bkg. Co. V. Royal Trust Co., xli., 1. 127. Appeal from order for reference — • Jurisdiction — Final judgment.] — In 1903, the U. L. Co. executed a contract for sale to D. of all its lumber lands and interests therein, the price to be payable in three in,- stalments at fixed dates. By a contempor- aneous agreement, the company undertook to get out logs for D., who was to make ad- vances for the purpose. The agreement for sale was carried out and two instalments of the purchase money paid. At the time these contracts were executed the ITnion Bank of Halifax had advanced inoney to the company and, shortly after the contract for sale was APPEAL. 76 assigned to the bank as security for such and future advances. The company having assigned in insolvency, the bank brought action against D. for the last instalment of the purchase money, to vphich he pleaded that he had paid in advances to the company and the bank more than the sum claimed. The trial judge held that the bank had no notice of the second agreement under which D. claimed to have advanced the money and gave judgment for the bank with a reference to ascertain the amount due. The full court set aside this judgment and ordered a re- ference to ascertain the amount due the bank, and, if anything was found to be due, to ascertain the amount due to D. from the company. The bank sought to appeal from the latter decision. — Beld, that the judg- ment of the full court was not a final judg- ment 'from which an appeal would lie under the Supreme Court Act to the Supreme Court of Canada. Union Bank of Halifax V. Dickie, xli., 13. 128. Jurisdiction — Final judgment.] — In 1903 the United Lumber Co. executed a con- tract for sale to D. of all its lumber lands and interests therein the price to be payable in three instalments at fixed dates. By a coutemporanieous agreement the company undertook to get out logs for D., who was to make advances for the purpose. The agree- ment for sale was carried out and two instal- ments of the purchase money paid. At the time these contracts were executed the Union Bank had advanced money to the company and shortly after the contract for sale was assigned to the bank as security for such and for future advances. The company having assigned in insolvency the bank brought action against D. for the last in- stalment of the purchase money to which he pleaded that he had paid in advance to the company and the bank more than the sum claimed. The trial judge held that the bank had no notice of the second agreement under which D. claimed to have advanced the money and gave judgment for the bank with a reference to ascertain the amount due. The full court set aside this judgment and ordered a reference to ascertain the amount due the bank and, if anything was found to be due, to ascertain the amount due to D. from the company. The bank sought to appeal from the latter decision. Held, that the judgment of the full court was not a final judgment from which an appeal would lie under the Supreme Court Act to the Su- preme Court of Canada. Union Bank of Halifax v. Dickie, xli., 13. 129. Jurisdiction — Stated case — Final judgment — Origin in {Superior Court — Su- preme Court Act, ss. 35 and 37.] — An in- formation was laid before the police magis- trate of St. John, N.B., charging the License Commissioners with a violation of the Li- quor License Act by the issue of more licen- ses in Prince Ward than the Act authorized. The informant and the Commissioners agreed to a special case being stated for the opinion of the Supreme Court of New Brunswick on the construction of the Act and that court, after hearing counsel for both parties, or- dered that " the Board of License Commis- sioners for the City of Saint John be, and they are hereby, advised that the said Board of License Commissioners can issue eleven tavern licenses for Prince Ward in the said City of Saint John and no more (38 N.B. Rep. 508). On appeal by the Commission- ers to the Supreme Court of Canada : Held, that the proceedings did not originate in a superior court, and are not within the ex- ceptions mentioned in sec. 37 of the Supreme Court Act ; that they were extra cursum curice. and that the order of the court below was not a final judgment within the meaning of sec. 36; the appeal, therefore, did not lie and should be quashed. Blaine v. Jamieson, xli., 25. 130. Nature of action — Eguitahle relief — "Supreme Court Act," s. 38 (c) — Appeal from referee — Final judgment,] — Where a statement of claim discloses only a common law cause of action and the cause was so dealt with at the trial the facts that the in- dorsement on the writ indicates a claim for equitable relief and that the trial judge, in ordering a reference to assess the damages, reserved further directions, do not make it a judicial proceeding in the nature of a suit in equity within the meaning of sec. 38 (c) of the " Supreme Court Act." The judg- ment of the Court of Appeal varying the re- port of the referee directed to assess the damages for the plaintifE in an action is not a final judgment from which an appeal lies to the Supreme Court of Canada. Clarke V. Goodall, xliv., 284. 131. Final judgment — Action for commis- sions — Reference — Reservation of further directions and costs.] — In an action against an insurance company for agent's commis- sions on policies and renewals the trial judge gave judgment for the plaintifE, ordered an account to be taken and reserved further directions and costs. His judgment was af- firmed by the Court of Appeal. Held, Fitz- patrick, C.J., dissenting, that the decision of the Court of Appeal was not a final judg- ment from which an appeal would lie to the Supreme Court of Canada. Crown Life Ins. Co. V. Skinner, xliv., 616. 132. Final judgment — Reference.] — In an action claiming rescission of a contract for the sale of timber lands and other equitable relief and, in the alternative, damages for deceit, the trial judge held that it was a case for damages only and gave judgment accordingly and referred to a referee matters arising out of a counterclaim ordering him also to take an account of moneys paid, an inquiry as to liens and incumbrances and as to the quantity of standing timber on the lands and other proper accounts. Further consideration of the cause was reserved. This judgment was affirmed by the full court ' and the defendants sought to appeal to the Supreme Court of Canada. Held, that the action tried and determined was the common law action for deceit only ; that the judgment given therein was not a final judgment with- in the meaning of that term in the " Su- preme Court Act " ; and that the court had no jurisdiction to entertain the appeal. Clarke v. Qoodall (44 Can. S. C. R. 284), and Croicn Life Ins. Co. v. Skinner (44 Can. S, C. R. 616) followed. Dunn v. Eaton, xlvii., 205. Note. — By 3-4 Geo. V. cap. 51, s. 1, the definition of final judgment r? APPEAL. 78 was amended to embrace " any judgment which determines in whole or in part any substantial right of any of the parties in con- troversy in any action, suit, cause, matter or other judicial proceeding." The decisions prior to this legislation in 1913 are no longer applicable. 133. Final judgment — Further directions — Master's report.] — On the trial before the Chancellor of Ontario of an action claiming damages for breach of contract judgment was given for the plaintiffs with reference to the Master to ascertain the amount of damages, further directions being reserved. This judgment was affirmed by the Court of Appeal. The Master then made his report which, on appeal to the Chief Justice of the Common Pleas, was varied by reduction of the amount awarded. The Chancellor then pronounced a formal judgment on further directions in favour of the plaintiff for the damages as reduced. The defendants ap- pealed from the judgments of the Chief Jus- tice and the Chancellor and the two appeals were, by order, heard together, but not form- ally consolidated. Both judgments were af- firmed by the Court of Appeal and the de- fendants sought to appeal from the judgment affirming them and also from the original judgment sustaining the decision at the trial, having applied without success to the court below for an extension of time to appeal from the latter ju.dgment. See Nelles v. Hesseltine (27 Ont. L.R. 97). Held, Brod- eur, J., dissenting, that the only judgment from which an appeal would lie was that affirming the judgment of the Chancellor on further directions ; that the Chancellor could not review the original judgment of the Court of Appeal nor that varying the Mas- ter's report and the Court of Appeal was equally unable to review them on the appeal from the Chancellor's decision and the Su- preme Court being required by statute to give the judgment that the Court of Appeal should have given was likewise debarred from reviewing these earlier decisions. Hes- seltine V. Nelles, xlvii., 230. 134. Final judgment — Jurisdiction — In- terim injunction — Interlocutory order.] — On motion to quash an appeal from the judg- ment (Q. R. 20 K. B. 411), dismissing an appeal from the judgment of the Superior Court, District of Montreal, granting an ap- plication by the plaintiff, respondent, for an interim injunction, counsel for the appellant admitted that the judgment appealed from was not a final judgment. The appeal was, therefore, quashed with costs, for want of jurisdiction. BMaume v. Stuart, xlvii., 394. 135. Jurisdiction — Provincial election — " Allerta Controverted Elections Act " — Preliminary objections — " Judicial proceed- ing " — " Final judgment."] — Held, per Da- vies, Idington, and Anglin, JJ., that under the provisions of the " Alberta Controverted Elections Act " the judgment of the Supreme Court of the province in proceedings to set aside an election to the legislature is final and no appeal lies therefrom to the Supreme Court of Canada. Held, per Davies, Ang- lin and Brodeur, JJ., that the judgment of the Supreme Court of Alberta on appeal from the decision of a judge on preliminary objections filed under the " Controverted Elections Act " is not a " final judgment " from which an appeal lies to the Supreme Court of Canada. Held, per Duff, J., that a proceeding under said Act to question the validity of an election is not a "judicial pro- ceeding " within the contemplation of sec- tion 2 (e) of the "Supreme Court Act" in respect of which an appeal lies to the Su- preme Court of Canada. Cross v. Carstairs, Edmonton Prov. Election, xlvii., 559. 136. Company law — Agreement hy direc- tors — Onerous contract — Non-disclosure to shareholders — Breach of contract — Damages — Settlement of accounts — Jurisdiction — Reference to master — Final judgment.] — After some subscriptions for stock had been received and the company was about to offer other stock for public subscription, a meet- ing of the directors was held at which the plaintiff, then one of the directors and the company's manager, resigned his office as a director and was appointed sales agent for the company's output of coal for five years from that date, at a liberal scale of remun- eration, with the exclusive right to make such sales in Alberta, Saskatchewan and Manitoba. At the same time an arrange- ment was made by which the other directors derived advantages in regard to certain mat- ters in dispute, respecting the affairs of the company, between them and the plaintiff. The material facts and circumstances con- nected with these arrangements were not dis- closed to the shareholders who then held stock in the company nor to other per- sons who subsequently subscribed for shares of its stock. Held, affirming the judgment appealed from (7 D.L.R. 96; 2 West. W.E. 986; 22 W.L.R. 128), that, as the plaintiff and his co-directors were in a fiduciary posi- tion and complete disclosure of the circum- stances in regard to the making of the con- tract had not been made to all the share- holders, present and future, the agreement was not binding upon the company. The order in the judgment appealed from direct- ing that, on taking the accounts between the parties, an allowance should be made to the plaintiff, on the basis of quantum meruit, for services rendered by him while in the em- ploy of the company was not disturbed. Per Fitzpatrick, C.J., and Idington, Anglin and Brodeur, JJ. — Where the judgment sought to be reviewed has finally disposed of one of the issues, forming a distinct and separate ground of action, the Supreme Court of Canada has jurisdiction to hear and determine the appeal. La Tille de St. Jean V. Molleur (40 Can. S. C. R. 139), and Mc- Donald v. Belcher ([1904] A. C. 429), fol- lowed ; Hesseltine v. Nelles (47 Can. S. C. R. ^230), referred to. Denman v. Clover Bar Coal Co., xlviii., 318. 137. Jurisdiction — Tteserve of further directions — " Final judgment " — Constrw- tion of statute — " Hupreme Court Act," R. S. C. 1906, c. 139, s. 2 (c) ; S & k Geo. V. c. ■il, s. 1.] — Before the amendment, in 1913, to sec. 2 (e) of the " Supreme Court Act," R. S. C. 1906, ch. 139, judgments were ren- dered maintaining an action on a bond by which two of the defendants were ordered to pay to the plaintiffs an amount not ex- ceeding that secured by the bond to be ascer- 79 APPEAL. 80 tained upon a reference to the master and further directions were reserved ; as to another defendant, recovery of the same amount, to be ascertained in the same man- ner, was ordered, but there was no reserve of further directions. Upon an appeal by the last mentioned defendant, Eeld, Davies, J., dissenting, that the judgment sought to be appealed from (23 Man. R. 159) did not finally conclude the action as proceedings still remained to be taken on the reference, consequently, it was not a final judgment within the meaning of section 2 (e) of the "'Supreme Court Act," prior to the amend- ment by the statute 3 & 4 Geo. V., ch. 51 (assented to on the 6th of June, 1913), and it was not competent to the Supreme Court of Canada to entertain the appeal. The Rural Municipality of Morris v. The London and Canadian Loam and Agency Co.; Ste- phenson V. Gold Medal Furniture Co., xlviii., 497. 138. Contract — Foreign lands — Sale of lands — Exchange — Specific performance — Jurisdiction of courts of equity — Mutuality of remedy — Relief in personam — Discretion- ary order — Jurisdiction — " Final judgment " — "Supreme Court Act," R. 8. C. 1906 c. 139, s. 38 (c).]— T., resident in the State of Iowa, U.S.A., brought suit in Saskatche- wan for specific performance- of a contract by which J., resident in Saskatchewan, agreed to sell him lands in Saskatchewan, part of the price being the conveyance to J. of lands in Iowa by T. The trial judge de- creed specific performance of the contract by J., and, on appeal, the full court varied the judgment by ordering that there should be a reference for inquiry and report upon T.'s title to the lands in Iowa, and that, upon the filing of such report, either party should be at liberty to apply for such judgment as he might be entitled to (8 Sask. L.R. 387). On the appeal to the Supreme Court of Can- ada the material questions were whether or not the fact that the lands to be exchanged were situated outside the province precluded the courts of Saskatchewan from decreeing specific performance for want of mutality of relief, and whether or not there was error in making the order of reference, which, in effect, gave the plaintiff a second opportun- ity of proving his title. Held, Idington, J., dissenting, that the courts of Saskatchewan, as courts of equity acting in personam, have , jurisdiction to decree specific performance ■ of contracts for the sale of lands situate within the province where the person against whom relief is sought resides within their jurisdiction; that, in the suit instituted by the foreign plaintiff in Saskatchewan, mutu- ality of relief existed between the parties, and that the discretion of the court appealed from in ordering the reference before the entry of the formal decree ought not to be interfered with on the appeal. The juris- diction of the Supreme Court of Canada to entertain the appeal was questioned by the Chief Justice and Idington, J. on the ground that the judgment appealed from was not a " final judgment." Davies, J., was of opin- ion that, as the suit was " in the nature of a suit or proceeding in equity," an appeal lay to the iSupreme Court of Canada in vir- tue of sub-sec. (c) of sec. 38 of the " Su- preme Court Act," R. S. C, 1906, ch. 139. Anglin, J. thought that, as a matter of dis- cretion, the court might decline to hear such an appeal. Judgment appealed from (8 Sask. li.R. 387) affirmed, Idington, J., dis- senting. Jones V. Tucker, liii., 431. 139. Where the Court of Appeal reversed the judgment at the trial and referred the action back to the trial judge to assess dam- ages on the evidence given at the trial in the Supreme Court, counsel for the appellant admitted he was unable to distinguish the case in principle from Wenger v. Lamont, 41 S. C. R. 603, and Grown Life v. Skkmer, 44 S. 0. R. 617, and the appeal was quashed accordingly. Billings v. Cassidy, Cam. Prac. 149. In a judgment in an interpleader issue the respondent's motion to quash be- cause the judgment was not final was dis- missed with costs. See Supreme Court Act, sec. 38. Roherts v. Piper, Cam. Prac. xi. 141. Lands were sold under a mortgage and a balance remained in court, to which the present appellant claimed to be entitled as second mortgagee, and presented an appli- cation to a judge in Chambers for payment out to him of the said surplus. His applica- tion was disputed by the present respondent. The appellant's application was granted, but this order was reversed by the fuU court. A further appeal taken to the Supreme Court was dismissed. The jurisdiction was not questioned. Miller v. Bent, Oct. 21st, 1908 (not reported). Cam. Prac. 37. 142. The statement of claim alleged that the defendant had assigned to plaintiff one-third share or interest in certain moneys due from the Dominion Govern- ment to the defendant in respect of a quarry ; that the defendant received $13,590, and plaintiff claimed $4,530. Various defences were set up and a counterclaim asking to have the assignment delivered up to be can- celled, and damages, or that the assignment be rectified and action dismissed as prema- ture. The trial judge gave judgment for plaintiff for $4,530.97, interest from a cer- tain date at 5 per cent., amounting in all to $4,776.19, and costs ; counterclaim dismissed. In the full court it was ordered that the ap- peal be allowed with costs to be debited against plaintiff on taking of accounts, and declared that the agreement in question did apply to the $13,590. and that plaintiff was entitled to one-third interest in same, but subject to a contribution by the plaintiff of one-third of the money properly expended by defendants in prosecuting the claims to the land and money covered by the said docu- ments. It was further ordered that it be referred to the District Registrar to take an account and make inquiry of what moneys had been properly expended by the defend- ant in prosecuting the claims. Further directions and costs were reserved. An ap- peal having been taken to the Supreme Court, the respondent moved to quash for want of jurisdiction, relying on Union Bank v. DioTcie, 41 S. C. R. 13, but the motion was refused. Sinclair v. Coulthard, Febv. 15th, 1910 (not reported). Cam. Prac. 20. 81 APPEAL. 82 143. An action was brought against the appellants claiming for loss and dam- age under a building contract, the sum of $7,137 and costs. The trial judge held that the plaintiffs were entitled to be paid for the work done, and that there should be a reference to the Master to take accounts on the footing of a quantum meruit. Before the accounts were taken the defend- ants appealed from this judgment, but the appeal was dismissed. On a further appeal taken to the Supreme Court of Canada the respondents moved to quash for want of jurisdiction. — After argument the majority of the Court held that there was jurisdic- tion to hear the appeal, and the following reasons for judgment were qrally delivered : — " Girouard, J., was of opinion that the amount in controversy exceeded $1,000. — Davies, J., was of opinion that applying the decision of the Privy Council in Belcher v. Macdonald (1908), Appeal Cases, to the present case, an appeal would lie from the judgment a quo. — Idington, J., dissenting was of opinion that a.] — Where a judge of the Supreme Court of Canada had heard the argument in the court appealed from, though he took no part in the judgment, it was considered that he was disqualified to hear the appeal. Grant v. Maclaren, Cam. Prac. 71. 250. Constitutional lajr — Notice to At- torney-Oeneral — Death of judge — Second argument ordered.'] — Where a judge who had heard the first argument died before judg- ment was pronounced and the other judges were equally divided in opinion, a second argument was ordered. — Where it appeared that a constitutional question was involved, the argument on the appeal was stopped and a new argument took place, after notice to the Attorney-General. Canadian Pacific Ry. Co. V. Ottawa Fire Ins. Co.; Canadian Pacific Ry. Co. v. City of Ottaica, Cam. Prac. 518. 251. Notice of appeal — Discontinuance — Cross-appeal.'i — Where one of two defend- ants, both of whom had given notice of ap- peal and joined in the appeal bond, gave notice of discontinuance, an objection on the part of the plaintiff, who bad given notice of cross-appeal, to the prosecution of the ap- peal by the other defendant was overruled in the Court of Appeal for Ontario. Arscott V. Lilley (14 Ont. App. R. 283) ; Masters' S. C. Prac. 200. 252. Jurisdiction — Order for stay of pro- ceedings — Matter of procedure — Judgment delivered out of court — Practice.] — In ap- peals from judgments ordering stay of pro- oeedings in actions by the appellants, mo- tions were made to quash on the ground that the orders were merely matters of pro- cedure, and not in the nature of final judg- ments. Judgments were reserved to admit of the filing of written arguments by the parties. — It appeared, later on, that there was urgent necessity for pronouncing judg- ment upon th« motions at an early date, and on 22nd Sept., 1886, the Chief Justice and judges who had heard the arguments, trans- mitted opinions to the registrar of the court, by mail and telegraph, the majority being of opinion that the appeals should be quashed for want of jurisdiction. — Fournier, J./" dis- sented. On 2nd Oct., 1888, on motion in hunvo. for the entry of judgments in con- formity with the opinions so expressed, it was ordered that formal judgments should be entered quashing the appeals with costs for want of jurisdiction. Canadian Pacific Railway Co. v. Conmee & McLennan, Cout. Cas. 66. 253. Record on appeal — Supreme Court Rules — Decree or order of court beloic] — See remarks on absence from^ the record of the decree of the court of original jurisdic- tion, per Davies, J., at page 136. Re Daly; Duly V. Broivn. xxxix., 122. AXD see EXECTJTOES A^'U ADiII>riSTRATOBS. 2.~)4. Evidence — Provincial lairs in Canada — Judicial notice — Conflict of talcs.] — As an appellate tribunal for the Dominion of Can- ada, the Supreme Court of Canada requires no evidence of the laws in force in any of the provinces or territories of Canada. It is bound to take judicial notice of the statu- tory or other laws prevailing in every pro- vince or territory in Canada, even where they may not have been proved in the courts below, or although the opinion of the judges of the Supreme Court of Canada may differ from the evidence adduced upon those points in the courts below. Cooper v. Cooper (13 App. Cas. 88), followed. Logan v. Lee, xxxix., 311. Note.— Cf. R. S. C. (1906), c. 145, s. 17. And see Practice. 255. Jurisdiction — Service out of juristic- tion — Attachment — Manitoba King's Bench Rules 201, 202 — Non-resident foreigner— Be- tcntion of goods pending suit — Suistitutioml service — Consolidating appeals to Svpreme Court of Canada — Questions of practice. Emperor of Russia v. Proskouriakoff, xlii., 226. 256. Practice — Concurrent findings of fact.] — The Supreme Court of CJanada ■will 105 APPEAL. 106 not interfere with concurrent findings on questions purely of fact unless satisfied that the conclusions appealed from are clearly wrong. Weller v. McDonald- McMillan Co., xliii., 85. 257. Concurrent findings of fact — Negli- gence — Shipping — Action for damages — Per- sonal injury — Evidence — Res ipsa loquitur — Limitation of lia'bility — " Canada Shipping Act," R. S. C. 1906, c. lis, s. 921— Prac- tice.'] — -Concurrent findings on questions of fact in tte courts below ought not to he disturbed on appeal unless a mistake is clearly shewn, — A ship lying at ber dock caught fire during the night and was de- stroyed. The officers of the ship fail.?d to arouse passengers In time to permit tliem to escape in safety and in an action to re- cover damages for injuries sustained in consequence by a passenger, the owners ad- duced no evidence to explain the jrisin of the fire. — Held, affirming the judgment ap- pealed from (19 Man. R. 430), that, in the circumstances, the only inference to be drawn was that the owners were grossly negligent. — In such an action the owners of the ship cannot invoke the limitation pro- vided by sec. 921 of the " Canada Ship- ping Act," R. S. C. 1906, ch. 113. The ■■Orwell" (13 P. D. 80), and Roche v. London and South-Western Ruiay Co. 1 1899] 2 Q. B. 502, referred to. Domhi- ioii Fish Co. V. Ishester, xliii., 637. 25S. Recalling judgment — Defect — Correc- tion of omission — Amendment of pleadings — Jurisdiction — Costs — Settlement of minutes, Prevost v. Bedard, li., 629. See Peactice and Peoceduke. 259. Construction of statute — Sales of subdivided lands — Registration of plans — Prohibitive sanction — "Land Titles Act," G Edw. VII., c. 2J,. s.-s. 7 (Alta.) ; J/ Geo. V., c. 2, s. 9; 5 Geo. V. c. 2, s. 25 (Alta.) — Retrospective legislation — Illegality of con- tract — Rescission — liecoi-cry of money paid — Riqht of action — Practice — Pleading, lii., 185. See Statute. 21. Peivx CorxciL Appeals. 260. Practice — Postponement pending ap- peal to Privy Council.] — When the appeal came on for hearing counsel for the respond- ent suggested to the court that the city had taken an appeal from the same judgment direct to the Privy Council and moved for a stay of proceedings. — The court ordered that until the decision of the appeal to the Privy Council all proceedings should be stayed and suspended. Ottawa Electric Co. v. City of Ottawa, Gout. Cas. 409. 261. Court of revievj — Appeal to Privy Council — Appealahle amount — Amendment to statute — Application — Notice of appeal — New trial — Marine insurance — Constructive total loss — Trial by jury ■ — ■ Misdirection. Sedgwick v. Montreal, xli., 693. 262. Jurisdiction — Appeal to Privy Coun- cil — Stay of proceedings. Peters v.^Perras. xlii., 361. See Practice. 263. Jurisdiction — Appeal to Privy Coun- cil — Stay of proceedings — Practice and pro- cedure, xlii. See Pkaotioe and Peoceduee. 22. Peoceduee in Courts Below. 264. Right of appeal— 62 Vict. c. 11, s. 27 (Ont) — Special leave to appeal per saltum — Questions in controversy — Negligence — Damages — Amendment of pleadings — Rule 615 — Non-suit — Verdict ■ — Procedure.] — Since tie enactment of the 27th section of chapter 11 of the statutes of Ontario, 62 Viet. (1899), a party appealing to a Divi- sional Court of the High Court, in a case where an appeal lies to the Court of Appeal for Ontario, has no right of appeal from the judgment of such Divisional Court to the Supreme Court of Canada, without spe- cial leave. Farquharson v. The Imperial Oil Co. (30 Can. S. C. R. 188). distin- guished. — In the present case, as the findings of the jury, upon which a verdict was en- tered, made it apparent that there was no necessity for amending the statement of claim or for any additional finding of a controversial fact the Divisional Court was justified in permitting an amendment claini- ing damages as well under the Ontario Workmen's Compensation for Injuries Act as at common law. Dick v. Gordaneer, Cout. Cas. 326. 265. Issue of fraud — Failure to plead nihil debet — Objections taken on appeal — Amend- ment.] — In an action to set aside a convey- ance as made in fraud of creditors, the de- fendant desiring to meet the action by set- ting up that there was no debt due, and, consequently, that no such fraud could exist, must allege these objections in his plead- ings. In the present case th€ defendant, having failed to plead such defence, was al- lowed to amend on terms, the Chief Justice dissenting. t^yndicat Lyonnais du K'ion- dyke v. McGrade, xxxvi., 251. And see Pleading. 2fi6. Appeal per saltum — Winding-up Act — Application under s. 76 — Defective pro- ceedings.] — Leave to appeal per saltum, un- der, s. 26 of the Supreme Court Act, cannot be granted in a case under the Dominion Wind- ing-up Act. An application under s. 76 of the Winding-up Act for leave to appeal from a judgment of the Supreme Court of New Brunswick was refused where the judge had made no formal order on the petition for a winding-up order and the proceedings before the full court were in the nature of a refer- ence rather than of an appeal from his de- cision. In re Cushing Sulphite Fibre Co.. xxxvi., 494. 267. Jurisdiction — Commitment of judg- ment debtor — Final judgment — Manitoba King's Bench Rules 748, 755 — ■'Matter or judicial proceeding" — Supreme Court Act, s. 2 (e) .] — An order of committal against a judgment debtor, under the Manitoba King's Bench Rule 755, for contempt in refusing to make satisfactory answers on examina- tion for discovery is not a "matter" or "judi- cial proceeding" within the meaning of sub- 107 APPEAL. 108 sec. (e) of sec. 2 of the Supreme Court Act but merely an ancillary proceeding by wbicb the judgment creditor is authorized to ob- tain execution of his .iudgment and no appeal lies in respect thereof to the Supreme Court of Canada. Danjou v. Marquis, 3 Can. S. C. R. 258, referred to. Svensson v. Bate- man, xlii., 146. 268. Jurisdiction — Alberta Liquor License Act — Cancellation of license — Persona desig- nnta — Curia nominatim — "Originatinq sum- mons " — Court of superior jurisdiction.'] — On an application for the cancellation of a liquor license issued under the " Liquor Li- cense Act " of the Province of Alberta, a .iudge of the Supreme Court of Alberta, in chambers, granted an originating summons ordering 'all parties concerned to attend be- fore him, in chambers, and, affer hearing the parties who appeared in answer to the sum- mons, refused the application. The full court reversed this order and cancelled the license. On an appeal by the licensee to the Supreme Court of Canada: — Held, that the case came within the principle decided in The Canadian Pacific Rly. Co. v. The Little Seminary of Ste. TUrise (16 Can. S. C. R. 606), and, consequently, the Supreme Coi^rt of Canada had no jurisdiction to entertain the appeal. Hi. Tlilaire v. Lambert, xlii., 264. 269. Quo warranto — Action by ratepayer — Municipal corporation — Payment of money — Statutory procedure — Matter of form — "Montreal City Charter:' ss. J/S, SSJ/, S38 — Construction of statute — 3 JJJdio. VII., c. 62, ss. 6 and 27.] — An action by a ratepayer of the City of Montreal to compel the mem- bers of the finance committee of the city council to reimburse the city for moneys which it was alleged they authorized to be illegally expended and asking for their dis- qualification under sec. 338 of the " City Charter," is not a proceeding in quo ivar- ranto under the provisions of articles 987 et seq. of the Code of Civil Procedure. — By sec. 334 of the charter (3 Edw. VII., ch. 62, sec. 27), the city council of Montreal must at the end of each year appropriate the revenues of the city for the services during the coming year, including a reserve of five per cent, of the total revenues, three per cent, of which is to provide for unfore- seen expenses. By sec. 42 of the charter, as amended by 3 Edw. VII., c. 62, sec. 6, the finance committee of the council must consider all recommendations invol- ving the expenditure of money, unless an appropriation has been already voted for the purpose. An item of unforeseen ex- penditure came before the council and was passed and sent to the finance committee, which directed the city treasurer to pay the amount, and it was paid accordingly : — Held, the Chief Justice and Girouard, J., contra, that the reserve of the two per cent, for unforeseen expenses was not an appropria- tion of the amount so directed to be paid. — Held, also, the Chief Justice and Girouard, J., dissenting, that under the provisions of the charter it is essential that every recom- mendation for the payment of money, where there has been no previous appropriation for the payment to be made, must receive the consideration of the finance committee and be sanctioned or rejected by that com- mittee before being finally acted upon by the council. That any such payment made without this formality, even when made bona fide and though, in fact, sanctiimcrt by the finance committee after if had been finally dealt with by the council, and though the city suffered no prejudice in conse- (luence of such payment, is an illegal ex- penditure and Involves the consequences pro- vided in such cases by the 338th section of the " City Charter." Larin v. Lapointe, xlii., 521. 270. Jurisdiction — Special leo.ve — ■'' Judi- cial proceeding " — Discretionary order — Mat- ter of public interest — Alberta " Liquor Li- cense Ordinance," s. 57 — " Originating sum- mons "—R. S. C. 1906, c. 139. s. 37—8 Edw. VII. (Alta.). c. 7, ss. 1, 2, 6.]— Proceedings on an originating summons issued by a judge of the Supreme Court of Alberta on an ap- plication for cancellation of a license under sec. 57 of th« " Liquor License Ordinance," are judicial proceedings within the meaning of sec. 37 of the "' Supreme Court Act," R, S. C. 1906, ch. 139, and, consequently, the Supreme Court of Canada has jurisdiction to entertain an application for leave to ap- peal from, the judgment of the Supreme Court of Alberta thereon.' — Where the deci- sions of the provincial court shew that the judges of that court are equally divided in opinion as to the proper construction of a statute in force in the province and it ap- pears to be desirable in the public interest that the question should be finally settled it is proper for the Supreme Court of Can- ada to exercise the discretion vested in it for the granting of special leave to appeal under the provisions of sec. 37 of the " Su- preme Court Act." Girouard, J., dissented on the ground that the proceedings in ques- tion were intended to be summary and that, in these circumstances, the case was not one in which special leave to appeal should be granted. Finseth v. Rylcy Hotel Co., xliii., 646. 271. Action — Public officer — Notice — No- tary public — Principal and agent — Mandate — Pleadings — Practice — New objections on appeal — Case on appeal — Notes of reasons by judges — Findings of fact — Art. SS C.P.Q.] — ^If a defendant has not, in the courts be- low, taken exception to want of notice of action, as required by art. 88 of the Code of Civil Procedure of Quebec, it is doubtful whether the objection can be urged on an appeal to the Supreme Court of Canada. De- vine v. Ilollon-ay (14 Moo. P. C. 290), re- ferred to. — The Supreme Court of Canada ought not, in ordinary cases, to take into consideration the notes of reasons for judg- ments in the courts below which have not been delivered before the settling of the case on the appeal : Mayhew v. Stone (26 Can. S. C. R. 58), followed. In a proper case, however, when the non-delivery of such notes is satisfactorily accounted for, the court may permit them to be filed and made use of as part of the record on the appeal: Canadian Fire Insurance Co. v. Robinson (Cout. Dig. 1105), referred to. — The court i-efused to re- verse the coiicurrent findings of fact by the courts below. Dufresne v. Desforges, xlvii., 382. And see Practice. 272. Board of Raihray Commissioners- Appeals on questions of law — Stated case— 109 APPEAL. 110 Submisnion of specific question — Practice — Construction of statute — R. 8. C. 1906, c. 37, s. 55 and s. 56, s.-s. 3.]— An appeal, under the provisions ot sec. 55, or see. 56, sub-sec. 3, of th« " Railway Act," R. S. C. 1906, ch. 37, should not be entertained by the Su- preme Court of Canada until the Board of Railway Commissioners for Canada has stated the case in writing and submitted for the opinion of the court some question which, in the opinion of the board, is a question of law. (Cf. " Regina Rates Case," 44 Can. S. C. R. 328, where this case was followed by Anglin, J., and 45 Can. S. C. R. at pp. 323 to 328). Canadian Pacific Railway Co. v. City of Ottawa, xlviii., 257. 273. Jurisdiction — " Supreme Court Act," ss. 36, 37, i6 — Judge in Chamhers — Originat- ing petition— Arts. 11, 12, SI'S, 876 C.P.Q.— Liquor laws — " Quebec License Law," R. 8. Q., 1900, arts. 924 et seq. — Property in license — Agreement — OivnersMp in persons other than holder — Inraliditv of contract — Public policy.]-'— A. cause, matter or judicial proceeding originating on petition to a judge in chambers, in virtue of articles 87o and 876 of the Quebec Code of Civil Procedure, is appealable to the Supreme Court of Can- ada where the subject of the controversy amounts to the sum or value of two thou- sand dollars. — ^It is inconsistent witb the policy of the " Quebec License Law " (R. S. Q., 1909), that the ownership of a license to sell intoxicating liquors should be vested in one person while the license is held in the name of another. An agreement having that effect is void inasmuch as it establishes conditions contrary to the policy of the sta- tute. Judgment appealed from (Q. R. 22 K. B. 58) , reversed, Brodeur, J., dissenting. Turgeon v. 8t. Charles, xlviii., 473. 274. Case originating in Superior Court — Supreme Court Act, s. SI (6) — Concurrent jurisdiction — "Mechanics' Lien Act" (B.C.) — Action to enforce lien.] — For an appeal to lie to the Supreme Court in a case not originating in a superior court, as provided in sec. 37, sub-sec. (b) of the " Supreme Court Act," it is not sufficient that the in- ferior court has concurrent jurisdiction with a superior court in respect to its general jurisdiction ; there must be concurrent jur- isdiction as respects the particular action, suit, cause, matter or other judicial proceed- ing in which the appeal is sought. — In Bri- tish Columbia the County Court alone may maintain an action to enforce a mechanic's lien. In such action, so far as the parties or any of them stand in the relation of debtor and creditor, the court may give judgment for the debt due whatever its amount, and if it exceeds $250 there may be an appeal to the Court of Appeal.- -iJeZtJ, Duff, J., dissenting, that though an action for the debt could be brought in the Supreme Court, the foundation for the County Court action is the enforcement of thp lien as to which there is no concurrent jurisdiction, and no appeal lies to the Supreme Court of Canada from the judgment of the Court of Appeal in .^iuch an action. Champion v. IVorW Building Co., 1., 382. 275. Expropriation — Application to ap- point arbitrator — Persona designata — ■ Amount in controversy — "Railway Act," R. ,S. G. 1906, c. 37, s. 196 — Jurisdiction of court — Practice — Railway.] — A railway company served notice of expropriation of land on the owner, offering ,$25,000 as com- pensation. It later served a copy of said notice on S., lessee of -said land for a term of ten years. On application to a Superior Court judge for appointment of arbitrators, S. claimed to be entitled to a separate no- tice and an independent hearing to deter- mine his compensation. The judge so held and dismissed the apiplication, and his rul- ing was affirmed by the Court of King's Bench. The company sought to appeal to the Supreme Court of Canada. — Held, per Fitzpatrick, C.J., and Idington, J., -follow- ing Canadian Pacific Railv)ay Co. v. Little Seminary of Ste. Th4rese (16 Can. S. C. R. 606), and St. Hilaire v. Lambert (42 Can. S. C. R. 264), that the Superior Court judge was persona designata to hear such applications as the one made by the com- pany ; that the ease, therefore, did not ori- ginate in a superior court and the appeal would not lie. — Per Duff, J. — The judge, under section 196 of the " Railway Act " acts as persona designata and no appeal lies from his orders under that section ; in this case, the application having been made to and the parties having treated the contesta- tion as a proceeding in the Superior Court, which had no jurisdiction, the Court of King's Bench rightly dismissed the appeal from the order refusing to appoint arbitra- tors ; and the appeal to the Supreme Court of Canada being obviousl.y baseless should for that reason be quashed. — Held, per Da- vies, Duff, Anglin and Brodeur, J.T., that as there was nothing in the record to shew that the amount in dispute was $2,000 or over, and no attempt had been made to establish by affidavit that it was, the appeal failed. Canadian Northern Ontario Rail- way Co. V. Smith, 1., 476. 276. Jurisdiction — Matter originating in inferior court — Transfer to superior court — Extension of time for appealing — Special leave — " Supreme Court Act," ss. ,37c, 71.] ■ — An action commenced in the District Court was, by consent of the parties, trans- ferred to and subsequently carried on in the Supreme Court of Saskatchewan as if a new writ had been' issued therein ; the state- ment of claim, pleadings and proceedings being all filed and taken in the latter court. — Held, that, although the proceedings, af- ter the issue of the writ, had all been carried on in the court of superior jurisdiction, yet as the cause originated in a court of inferior jurisdiction, an appeal de piano would not lie to the Supreme Court of Canada. TucTxCr V. Young (30 Can. S. C. R. 185) followed. — An order in the Supreme Court of Sas- katchewan was made extending the time for appealing beyond the sixty days limited for bringing the appeal by the " Supreme Court Act," under see. 71. On an applica- tion, under section 37 (c) of the "Supreme Court Act," for special leave to appeal. — Held, also, following Ooodison Thresher Go. V. Township of McNab (42 Can. S. C. R. 694), that, notwithstanding the order ex- tending the time for appealing made in the court appealed from, the Supreme Court of Canada had no jurisdiction to grant special leave for an appeal after the expiration of Ill APPEAL. 112 the sixty days limited for bringing appeals by section 69 of the " Supreme Court Act." Jlillman v. Imperial Elevator d Lumber Co., liii., 15. 277. Final judgment — Substantive right — "Supreme Court Act," s. 2 (c) — 3 d 4 Geo. V. c. 51 — Procedure — Service out of jurisdiction — Costs — Practice — Jurisdiction.] — No appeal lies to the Su- preme Court of Canada from a judgment of the Supreme Court of New Brunswick af- firming the decision of a judge who refused to set aside his order for service of a writ out of the jurisdiction. Idington, J., dis- senting. — Per Davies and Anglin, JJ. — The judgment did not dispose of any substantive right ... in controversy in the action and therefore was not a final judgment as that term is'dtfined in 3 & 4 (tCO. V. c. 51. — The appeal was quashed bat respondent was only given the general costs of appeal to the date of the motion to quash as he had not conformed to the requirements of Su- preme Court Rules 4 and 5. St. John Lum- ber Co. V. Roy, liii., 310. 278. Quo warranto — Action by rate- payer — Municipal corporation — Payment of money — Statutory procedure — Matter of form — " Montreal City Charter " — Con- struction of statute. Larin v. Lapointe, xlii., 521. See supra, 269. 279. Constitutional law — Provincial legis- lation — Succession duties — Taxation — Pro- perty mthin province — Bona notabilia ■ — Sale of lands — Covenant — Simple contract — Specialty — Construction of statute — Severable provisions — R. S. M. 1902, c. 161, s. 5 — (Man.)— J, d 5 Edw. YII. c. 1,5, s. 1/ (Man.) — Jurisdiction — Surrogate Court — Persona designata, li., 428. See Constitutional Law. 280. Misdirection — Report by trial judge — Review on appeal, xxxiv., 265. See supra, 227. iiSl. Discretionary order — Amendment — Formal judgment, xxxiv., 279. See supra, 97. 282. Time for appealing — Delays occa- sioned by court — Approval of security bond, xxxiv., 282. See supra, 1. 283. Judgment on appeal — Art. 12Jfl C. P. Q. — Quorum of judges — Judgment pro- nounced in absence of disqualified judge — Jurisdiction, xxxv., 330. See Quorum. 284. Opposition afiu de charge — Order for security — Interlocutory judgment — Final order — Revision, xxxv., 1. Sec supra, 120. 285. Stay of proceedings — Final judg- ment, Cout. Cas. 66. See supra, 2.52. 23. Pbohibition. 286. Jurisdiction — Prohibition — Quebec appeals— R. S. C. [1906] c. 139, ss. 39 and Jfij — Construction of statute.] — No appeal lies to the Supreme Court of Canada from the judgment of a court of the Province of Quebec in any case of proceedings for or upon a writ of prohibition, unless the mat- ter in controversy falls within some of the classes of cases provided for Ijy section 46 of the " Supreme Court Act," R. S. C. 1906, c. 139. Shannon v. The Montreal Park and Island Railway Co. (28 Can. S. C. R. 374) overruled. Desormeaux v. Ste. Thirise, xliii., 82. 24. Right op Appeal. 287. Special case — Question for decision — Matters extra cursum curice.] — The special case must raise a question of law for deci- sion. If submitted to the court below on matters of fact only, the judgment thereon is extra cursum curice and not susceptible of appeal. Burgess v. Morton ( (1896) A. C. 136), Masters' S. C. Prac. 17. 288. Jurisdiction — Petitory action — Born- age — Surveyor's report — Costs — Order as to location of boundary line — Execution of judgment.] — Where, in an action au p4ti- toire and en bornage the question as to title has been finally settled, a subsequent order defining the manner in which the boundary line between the respective properties shall be established is not appealable to the Su- preme Court of Canada. Cully v. Ferdais (30 Can. S. C. R. 330) followed. City of Hull V. Scott cG Walters, xxxiv., 617. 289. Right of appeal — Interest of appel- lant — Parties to action — Art 77 C. P. Q.— Sale of substituted lands — Will — Prohibi- tion against alienation — Arts. 252, 953a, 968 ct seq. C. C. — Res judicata.] — Where a per- son who might have an eventual interest in substituted lands has not been called to the family council nor made a party in the Su- perior Court on proceedings for authority to sell the lands, the order authorizing the sale is, as to him, res inter alios acta, does not prejudice his rights, and, therefore, he can- not maintain an appeal therefrom. PrSvost v. Prevost, xxxv., 193. 290. Special leave — Judge in chambers — Appeal to full court — Jurisdiction.] — ^No appeal lies to the Supreme Court of Canada from an order of a judge of that court in chambers granting or refusing leave to ap- peal from a decision of the Board' of Rail- way Commissioners under s. 44 (3) of the Railway Act, 1903. (Leave to appeal to Privy Council refused, 2nd Aug., 1905). Willioms v. Grand Trunk Railway Co., xxxvi., 321. 291. Appeal to Privy Council — Colonial Courts of Admiralty Act, 1890 (Imp.) — Right of appeal de piano — Bail for costs — Practice.] — Upon the application of the ap- pellants (30th March, 1906), for an order to fix bail on a proposed appeal direct to His ■ Majesty in Council, under the rules estab- lished by the Colonial Courts of Admiralty 113 APPEAL. llJt Act, 1890 (Imp.), the Supreme Court of Canada, sitting in banco, after liearing counsel for and against tlie application, made an order, jjro formd, (without express- ing any opinion as to the right of appealing de piano), that the appellants should give bail to answer the costs of the proposed appeal in the sum of £300 sterling, to the satisfaction of the registrar of the Supreme Court of Canada, on or before the 4th of April, 1906. The " Alhano " v. The " Pari- sian," xxxvii., 301. 292. Right of appeal — Denial iy provin- cial statiite.'i — The Supreme Court of Can- ada refused to quash an appeal on the ground that the right of appealing had been taken away by section 36 of " The Mechan- ics' and Wage Earners' Lien Act," K. S. M. (1902) c. 110. (Appeal to Privy Council dismissed, 31st July, 1908.) Day v. Crown Grain Co., xxxix., 258. And see Lien. 293. Decision of Commissioner of Mines — Final judgment — Mandamus, xxxiv., 328. See supra, 119. 294. Interlocutory proceeding judgment, xxxv., 12. See supra, 121. Final 295. Award — Choice of forum — Curia de- signata, xxxviii., 511. See supra, 7. 296. Appeals ly hoth parties — Different courts of appeal— Affirmance in Court of Review, xxxix., 81. See supra, 76. 297. Municipal assessment — Provincial legislation — Denial of appeal, xxxix., 174. See supra, 77. 298. Proceeding in formd, pauperis — Leave — Security for costs, Cout. Cas. 6. See supra, 62. 299. Jurisdiction — Special leave — Appeal per saltuin, Cout. Cas. 281. See supra, 74. . 300. Controversy — Special leave, Cout. Cas. 326. See supra, 264. 301. " Winding-up Act " — Discretionary order, Cout. Cas. 341. See supra, 98. 25. Time foe Appealing. 302. Leave to appeal — Expiration of time.] — Leave to appeal cannot be granted after the expiration of sixty days from' the signing, entry or pronouncing of the judg- ment appealed from. Stewart v. Skulthorpe; Rolerts v. Donovan, Masters' S. C. Prac. 27. Cam. Prac. 189. 303. Leave to appeal — Order after exten- sion of time — Indulgence upon appeal en- tered without such leave.'] — The Supreme Court of Canada refrained from quashing an appeal in order to permit of an applica- tion for leave to the court appealed from, upon an extension of time for appealing. Connell v. Connell, 9th June, 1905, Masters' S. C. Prac. 51. Cam. Prac. 289. 304. Expiration of time for appealing — Order extending time — Special circum- stances.] — As to what are " special circum- stances " for the extension or abridgment of time fixed by sec. 71 of the S. C. Act and S. C. Rule 108, and cases shewing grounds on which applications of this nature may be granted, see Annual Prac, 1907, pp. 875-6, 1116; Wilson's Jud. Acts (6th ed.), pp. 446, 469: Holmested & Langton, Jud. Acts (3rd ed.), pp. 136, 558, 563; Langdon v. Robertson (13 Out. P. E,. 1.39) ; Seivewright v. Leys (12 Ont. P. R. 200) ; Re Gabourie (12 Ont. P. R. 252) ; Piatt v. Grand Trunk Ry. Co. (12 Ont. P. R. 380), Masters' S. C. Prac. 95, 203. Cam. Prac. 437. 305. Jurisdiction — Expiration of time for appealing.] — Where the time limited for bringing an appeal to the Supreme Court of Canada has expired, there is no jurisdiction in the Supreme Court of Canada or a judge thereof to approve a bond of security for the costs of appeal. — Cf. The News Printing Company of Toronto v. Macrae (26 Can. S. C. R. 6!35) ; Canadian Mutual Loan <£ Investment Company v. Lee (34 Can. S. C. R. 224) . Fournier v. Leger, Cout. Cas. 100. 306. Appeal per saltum — Expiration of time for appealing — Supreme Court Act, s. JfO.] — Leave to appeal per saltum cannot be granted after the expiration of the time lim- ited by s. 40 of the Supreme and Exchequer Courts Act. Stewart v. Sculthorpe, Cout. Cas. 152. 307. Extension of time — Order by single judge — Jurisdiction — Order by court ap- pealed from — Municipal by-latc — Costs.] — An appeal from the judgment of the Court of Appeal for Ontario, reversing the judg- ment of the Chancellor, which dismissed a motion to quash a by-law for borrowing money for the construction of a sewer was entered under an order made by a judge of the court appealed from, extending the time for bringing the appeal. The court, suo motH, quashed the appeal with costs as of a motion to quash, for want of jurisdiction, on the ground that the order should have been made by the court and not by a single judge. Villaije of Brussels v. McCrae, Cout. Cas. 336. Cam. Prac. 289. 308. Expiration of time for appealing — Special lcave~R. S. C. c. 135. s. 20^u'ris- diction.] — After the expiration of the sixty days limited for bringing an appeal there is no jurisdiction in the Supreme Court of Canada to grant special leave for appealing. Canadian Mutual Loan and Investment Co. V, 7.ee (34 Can. S. C. R. 224), and Connell V. Connell (Cam. S. C. Prac. 22'4), fol- lowed. C. Beck Mfg. Co. v. Ontario Lum- ber Co., Cout. Cas. 422. Cam. Prac. 286. 309. Appeal per saltum — Time limit — ■ Pronouncing or entry of judgment.] — To 115 APPEAL. 116 determine whether the sixty clays, within which an appeal to the Supreme Court must be taken, runs from the pronouncing or en- try of the judgment from which the appeal is taken no distinction should be made be- tween common law and equity cases. The time runs from the pronouncing of judg- ment in all cases except those in which there is an appeal from the regis- trar's settlement of the minutes or where such settlement is delayed because a sub- stantial question affecting the rights of the parties has not been clearly disposed of by such judgment. County of Elgin v. Robert, xxxvi., 27. .^10. Order extending time — Jurisdiction —R. S. C. c. 135, s. Jt2—Praotice.J—The court refused to entertain a motion to quash the appeal on the ground that it had not been taken within the sixty days limited by the statute and that an order by a judge of the court appealed from after the expiration of that time was ultra vires and could not be permitted under s. 42 of the Supreme and Exchequer Courts Act, R. S. C. c. 135. Tem- iscoiiata Ry. Go. v Clair, xxxviii., 230. And see Teespass. 311. Jurisdiction — Final judgment — Tim,e for appealing — Exchequer Court Act, R. 8. C. (1906) 0. IJfO, s. S2— Exchequer Court rules.'\ — Notwithstanding that no appeal has been taken from the report of a referee within the fourteen days mentioned in sec- tions 19 and 20 of the General Rules and Orders of the Exchequer Court of Canada (12th December, 1899), an appeal will lie to the Supreme Court of Canada from an order by the judge confirming the report, as required by the said sections, within the thirty days limited by section 82 of the Exchequer Court Act, R. S. C. (1906), c. 140. JfortU Eastern Banking Co. v. The Royai Trust Co.; In re Atlantic and Lake Superior Ry. Co., xli., 1. 312. Limitation of time — Railway Com- missioners — Question of jurisdiction — Leave hy judge — Powers of Board — Completed railway — Order to provide station — R. S. [1906] c. 37, ss. 26, 151, 158-9, 166-7, and 258.] — Except in the case mentioned In Rule 59 there is no limitation of the time within which a judge of the Supreme Court may grant leave to appeal under sec. 56 (2) of the " Railway Act," on a question of the jurisdiction of the Board of Railway Com- missioners — The Board of Railway Com- missioners has power to order a railway company whose line is completed and in operation to provide a station at any place where it is required to afford proper accom- modation for the traffic on the road. Iding- ton and Duff, JJ.. dissenting. Grand Trunk RaiUray Co. v. Department of Agriculture, xlii., 557. 313. Special leare — Time limit — Exten- sion— R. S. C. [1906] c. 139, s. J/S (e).]— After the expiration of sixty days from the signing of entry or pronouncing of a judg- ment of the Court of Appeal for Ontario, the Supreme Court of Canada is without jurisdiction to grant special leave to appeal therefrom, and an order of the Court of Appeal extending the time will not enable it to do so. John Ooodison Thresher Co. v. Township of McNah, xlii., 694. 314. New right of appeal — Statute — Ap- plication to pending actions.] — An Act of Parliament enlarging the right of appeal to the Supreme Court of Canada does not apply to a case in which the action was instituted before the Act came into force. Williams v. Irvine (22 Can. S. C R. 108) ■ Hyde v. Lindsay (29 Can. S. C. R. 99) and Colonial Sugar Refining Go. v. Irving ([1905] A. C. 369) followed. Doran v. Jewell, xlix., 88. 315. Special leave — Extension of time, xxxiv., 224. See supra, 18. 316. Bringing of appeal — Delay occa- sioned hy court, xxxiv., 282. See supra, 1. 317. Approval of seourity hond — Delay by judge — .Extension of time, xl., 455. See supra, 4. 318. Lapse of order — Extension of time, Cout. Cas. 297. See supra, 13. 26. WiNDiNG-trp Act. 319. Jurisdiction — Winding-up proceed- ings — Time for appealing — Amount in con- troversy — Construction of statute — " Su- preme Court Act." R. S. C. 1906, c. 139, ss. Ji6, 69. 71—" Winding-up Act," R. S. C. 1906, c. 1.'4, .ss. 10/,, 106— Practice— Aflirm- ing jurisdiction — Motion in court — Discre- tiona/ry order hy judge.] — Per Fitzpatrick. C.J., and Idington and Brodeur, JJ. (Duff and Anglin, JJ., contra). — The appeal to the Supreme Court of Canada given by sec- tion 106 of the "Winding-up Act," R. S. C. 1906, c. 144, must be brought within sixty days from the date of the judgment appealed from, as provided by section 69 of the " Supreme Court Act," R. S. C. 1906, c, 139. After the expiration of the sixty days so limited neither the 'Supreme Court of Canada nor a judge thereof can grant leave to appeal. Goodison Thresher Go. v. Township o/ McNab (42 Can. S. C. B. 694), and Hillman v. Imperial Elevator and Lumber Go. (53 Can. S. C. R. 15), fol- lowed ; Grand Trunk Railway Co. v. De- partment of Agriculture of Ontario (42 Can. S. C. R. 557), distinguished. — Per Duff, J. (dissenting). — Under section 106 of the " Winding-up Act," the application for leave to appeal may be made after the expiration of sixty days from the date of the judgment from which the appeal is sought and, whether it be made before or after the expiration of the sixty days, lapse of time should be considered by the judge applied to and acted on by him, in the ex- ercise of discretion, according to the cir- cumstances of the case. — Per Anglin, J. (dis- senting) . — On such an application for leave to appeal, the provisions of section 71 of the " Supreme Court Act " apply and an extension of the time for appealing may be 117 APPEAL. 118 obtained thereunder. — Per Idington, J. — There is no authority under wliich an ap- plication for an order aflirming the jurisdic- tion of the Supreme Court of Canada to en- tertain an appeal can be made to the court ; the proper and only course is by application to the registrar acting as judge in chambers. Per Duff, J. — Although not strictly the pro- per procedure, the objection to such an ap- plication may be waived. — Per Duff, J. — Section 106 of the " Winding-up Act " im- poses a further condition of the right of appeal over and above those imposed by sections 69 and 71 of the " Supreme Court Act " ; an applicant, having obtained leave after the expiration of the time limited for appealing, is still obliged to satisfy a judge of the court appealed from that special cir- cumstances justify an extension of time, and it is the duty of that judge to exercise pro- per discretion in -making such an order on his own responsibility. Attorney-General v. Emerson (24 Q. B. D. 56), and Banner v. Johnston (L. R. 5 H. L. 157), referred to. — Per Brodeur, J. — In the case of appeals from judgments rendered under the " Wind- ing-up .4et," the jurisdiction of the Su- preme Court of Canada is determined by section 106 of the " Winding-up Act," and is dependent solely upon the amount in- volved in the judgment appealed from and not upon the amount demanded in the pro- ceedings on which that judgment was ren- dered. Ross V. Ross, Barry & McRae, liii., 128. 320. Appeal per saltum — Defective pro- ceedings, xxxvi., 494. See supra, 266. 321. Controversy — Stay of foreclosure proceedings — Discretionary order — Final judgment, xxxvii., 173. See supra, 30. 322. Leave to appeal — Controrersy — Re- fusal of Winding-up order, xxxvii., 427. See supra, 32. 323. Appointment of liquidators — Discre- tionary order. Cam. Cas. 209. See " Wi?s'DiNG-up Act." 324. Controversy — Discretionary order — Refusal of special leave. Cout. Cas. 119. Sec supra, 11. 325. Appeal dc piano — Special leave — Dis- nary order. Cout. Cas. 341. See supra, 95. the trial, abandoned the claim under the former Act and, thereupon, the judge dealt with the ease as a claim under the " Work- men's Compensation Act," found that the plaintiff's deceased husband came to his death solely in consequence of his own " wilful and serious misconduct," and, there- fore, under sub-section 2 (c) of section 2 of the Act, held that she was precluded from obtaining compensation in consequence of his death. — Per Davies, Duff and Anglin, J.T. — The right of appeal from a decision in the course of proceedings to which article 4 of the second schedule of the " Workmen's Compensation Act " applies is available only for questioning the determination of the court or judge upon some question of law. Decisions upon questions of fact in adjudicating upon a claim brought before tlie Supreme Court under sub-section 4 of section 2 of that Act are not subject to appeal. Whether or not there is any rea- sonable evidence to support a finding of wilful and serious misconduct is an appeal- able question. — In the circumstances of the case the court held, Davies and Anglin, JJ., dissenting, that there was not reasonable evidence to support the finding of wilful and serious misconduct. — The appeal from the judgment of the Court of Appeal for British Columbia (15 B. C. Rep. 198) was dis- missed, Davies and Anglin, -J.!., dissenting. British Columtia Sugar Refining Co. v. Grassick, xliv., 106. 327. Municipal corporation — Drainage — Construction of sewers — Nuisance — Injunc- tion — ■ Damages — Right of action — Prac- tice.] — An application for leave to appeal per saltum was based principally upon the grounds that the case was distinguishable from the case of Lewis v. Alexander (24 Can. S. C. R. 551) ; that the evidence shewed that the sewer in question had been constructed as a general sewer, and that the statute referred to bv the learned judge in the court below (R. S. O. 1887, c. 184, s. 489. s.-s. 47), had been cited and com- mented upon in the case before the Supreme Court of Canada above referred was dis- missed. City of London v. Lewis, Cout. Cas. 162. .328. Decree on appeal — Entry of judg- ment, xxxvi., 159. See JuDGJiEXT. 329. Account — Statute of Limitations — Agents or partners — Reference — Practice, xxxviii., 216. See AcoorxT. 27. Othek Cases. 326. Employer and employee — Compensa- tion for injury — Contritiitory negligence — Construction of statute — "Workmen's Com- pensation Art." 2 Edir. VII. c. 74, s. 2. s.-s. 2 (c) a-nd J,, sch. 2. art. Jj — Remedial legis- lation — Refusal of damages — Right of ap- peal — Evidence.']— In an action in the Su- preme Court of British Columbia claiming damages under the "Employers' Liability Act," and, alternatively, under the "Work- men's Compensation Act," the plain-tiff, at 330. Appeals from Board of Railway Commissioners — Practice — References — • Form of order T>y Supreme Court of Can- ada-.] — On motion for directions as to the settlement of the minutes of the judgment by the Supreme Court of Canada on an appeal under section 56 (3) of "The Rail- way Act," by leave of the Board, with ques- tions referred, the court directed that the registrar should certify the opinion of the court in answer to the question submitted. Canadian Pacific Railway Co. v. Regina Board of Trade, xlv., 321. And see Railways. 119 AEBITEATIOXS AND AWAEDS. 120 ARBITRATIONS AND AWARDS. 1. Arbitkatoks, Appointment and Quali- fication, 1-4. 2. Conditions Precedent, -5-7. 3. Setting Aside Award, 8-9. 4. Other Cases, 10-15. 1. Appointment and Qualification. 1. Arbitration and award — British Co- liimtia Arbitration Act — Setting aside award — Misconduct of arbitrator — Partial- ity — Evidence — Jurisdiction of majority — Decision in absence of third arbitrator — Judicial discretion.] — A reference under the British Columbia Arbitration Act author- ized two out of three arbitrators to make the award. After notice of the final meet- ing the third arbitrator failed to attend, on account of personal inconvenience and pri- vate affairs, but both parties appeared at the time appointed and no objections were raised on account of the absence of the third arbitrator. The award was then made by the other two arbitrators present : — Held, reversing the judgment appealed from (10 B. C. Rep. 48), that, under the circum- stances, there was cast upon the two arbi- trators present the jurisdiction to decide whether or not, in the exercise of judicial discretion, the proceedings should be further delayed or the award made by them alone in the absence of the third arbitrator, and it was not inconsistent with natural justice that they should decide upon making the avi'ard themselves. — Held, further, that al- though the third arbitrator had previously suggested some further audit of certain ac- counts that had already been examined by the arbitrators, there was nothing in this circumstance to impugn the good faith of the ■ other two arbitrators in deciding that further delay was unnecessary. — Where it does not appear that an arbitrator is in a po.sition with regard to the parties or the matter in dispute such as might cast sus- picion upon his honour and impartiality, there must be proof of actual partiality or unfairness in order to justify the setting aside of the award. Doberer v. Megaw, xxxiv., 125. 2. Statutory arbitrators — Jurisdiction — Av-ards " from time to time " — Res judi- cata.] — The statutes authorizing the ap- pointment of arbitrators to settle accounts between the Dominion and the Provinces of Ontario and Quebec and between the two provinces, provided for submission of ques- tions by agreement among the governments interested; for the making of awards from time to time ; and that, subject to appeal, the award of the arbitrators in writing should be binding on the parties to the sub- mission.^The provinces submitted to the ar- bitrators for determination the amount of the principal of the Common School Fund to ascertain which they should consider not only the sum held by the Government of ■Canada but also "the amount for which Ontario is liable." In 1896 by award No. 2, the arbitrators determined that moneys remitted to purchasers of school lands un- less made in fair and prudent administra- tion, and uncollected purchase money of patented lands, unless good cause were shewn for non-collection, should be deemed moneys received by Ontario, and in 1899 the amount of liability under these heads was fixed by award No. 4. In 1902 the Privy Council held that the arbitrators had no jurisdiction to entertain a claim by Que- bec to have Ontario declared liable for the purchase money of school lands yet unpat- ented allowed to remain uncollected for many years. In making their final award in 1907, the arbitrators refused an applica- tion by Quebec for inclusion therein of the amounts found due from Ontario for remis- sions and non-collections and held that they had exceeded their jurisdiction in determin- ing such liability. On appeal from this de- termination embodied in the final award. — Held, Fitzpatrick, C.J., and Duff, J., ex- pressing no opinion, that the arbitrators had no jurisdiction to determine the liability of Ontario for moneys remitted or not col- lected. Attorney-General for Ontario v. At- torney-General for Quebec ((1903) A. C. 39) followed. — Held, also, Fitzpatrick, C.J., and Duff, J., dissenting, that awards Nos. 2 and 4 in so far as they determined this lia- bility were absolutely null, and, therefore, not binding on Ontario. Quebec v. Ontario, xlii., 161. 3. Arbitration and aicard — Procedure — Prolonging date for award — Special circum- stances — " Railway Act," R. 8. C, 1906, c. 37, s. 204.] — On an arbitration respecting compensation to be paid for lands taken un- der the " Railway Act," R. S. C, 1906, ch. 37, the arbitrators had fixed a day for their award according to the provisions of sec. 204. After some proceedings before them it was arranged, for the convenience of coun- sel for the parties, that further proceedings should be suspended until the return of counsel who were obliged to be present at the sittings of the Judicial Committee of the Privy Council and nothing further was done until after the return of counsel from abroad at a date later than the time so fixed for the award. The arbitrators had not prolonged the time for making the award but, upon reassembling after the day origin- ally fixed had passed, they fixed a later date for that purpose. The company's arbitra- tor and counsel then refused to take part in any subsequent proceedings and the two re- maining arbitrators continued the hearing and made an award in favour of the claim- ant greater than that offered by the com- pany for the lands exproiDriated. In an ac- tion by the company to have the award set aside and for a declaration that the sum offered should be the compensation payable for the lands : — Held, Fitzpatrick, C.J., and Anglin, J., dissenting, that, in the circum- stances of the case, the company should not be permitted to object to the manner in which the arbitrators had proceeded in pro- longing the time and making the award. The appeal from the judgment of the Court of King's Bench (Q. R. 22 K. B. 221), de- claring the award to have beeu validly made was, consequently, dismissed with costs. Canadian Northern Qucbea Railway Co. V. Naud, xlviii., 242. 121 AKBITEATIO.N iS AXD AWAEDS. l2-i 4. Expropriation — Agreement to fix com- pensation or valuation — Powers of referees — Majority decision — Railway.'\ — Where the land was expropriated for railway purposes the railway company and the owner agreed to have the compensation determined by re- ference to three named persons called " valuers " in the submission ; their decision was to be binding and conclusive on both parties and not subject to appeal ; they could view the property and call such wit- nesses and take such evidence, on oatb or otherwise, as they, or a majority of them, might think proper ; and either party could have a representative present at the view or taking of evidence, but Lis failure to attend for any reason would not affect the validity of the decision : — Held, Fitzpatrici, C.J., and Duff, J., dissenting, that this agreement did not provide for a judicial arbitration, but for a valuation merely, by the parties to whom the matter was referred, of the land expropriated. — The agreement provided that a valuator should be appointed by each party and a county court judge should be the third ; if one of those appointed would or could not act the party who appointed him could name a substitute ; if it was the third the parties could agree on a substitute, in which case the decision of any two would be binding and conclusive without appeal : if they could not so agree a High Court judge could appoint. There was no neces- sity for substitution. — Held, that the deci- sion of any two of the valuators was valid and binding on the parties. Campbellford Ru.lway Co. v. llassie, h, 409. 2. CoxniTioNS Precedext. 5. Expropriation of land — Arbitration — Authority for submission — Trespass — 2 Edw. VII. c. lOJf (K.S.).] — By statute in Nova Scotia if land is taken for railway purposes the compensation therefor, and for earth, gravel, etc., removed shall be fixed by arbi- trators, one chosen by each party and the third, if required, by those two. A railway company intending to expropriate, their en- gineer wrote to SI., who had acted for the company in other cases, instructing him to ascertain if the owners had arranged their title so that the arbitration could proceed and, if so, to ask them to nominate their man who, with il., could appoint a third if they could not agree. The engineer added, " I will send an agreement of arbitration which each one can subscribe to or. if they have one already drafted, you can forward it here for approval." Xo such agreement was sent by, or forwarded to, the engineer, but the three arbitrators were appointed and made an award on which the owners of the land brought an action : — Held, reversing the judgment appealed from (38 N. S. Rep 80). that as the company had not taken the pre- liminary steps required by the statute, which therefore did not govern the arbitration pro- ceedings, the award was void for waiit of a proper submission. In rerness Railway and Coal Co. V. ilclsaac, xxxvii.. 1.34. A^'D see J3xpropeiation. 6. Construction of contract — Condition precedent — Right of action.] — A contract for the sale of timber limits contained a guar- antee by the vendor that the quantity of tim- ber thereon at the time of the sale would prove equal to that shewn in a statement annexed and a covenant that he would re- pay to the purchasers the amount of any shortage found in proportion to the price at which the sale was made. In another clause, provision for arbitration was made in case of dispute as to the amount of any such shortage, but it did not in express terms deprive the purchaser of the right to recover any claim for shortage until after an award had been obtained : — Held, affirming the judgment appealed from (15 B. C. Rep. TO), Idington, J., dissenting, that an award by arbitrators had not been made a condition precedent to recovery for the amount of any deficiency in the quantity of timber guaran- teed to be upon the limits. David v. Hnift, xliv., 179. 7. Industrial improvements — Raising height of dam — Xuisance — Damages — Exper- tise and arhitration — Right of action — Con- dition precedent — R. 8. Q., ISSS. arts. .5.i.5.5, ■j.j.iii.] — The mode of ascertainment of dam- ages by the arbitration of experts provided by article 5536 of the Revised Statutes of Quebec, 1888, does not exclude the right of action to recover compensation in the courts. Gale v. Bureau, xliv., 305. AxD see Riveks axd STUE.iirs. 3. Settixg Aside Award. S. Rnihcays — Expropriation of lands — Ap- ]iea'. — Jurisdiction of court on appeal— ^Re- ference back to arbitrators — Proceedings by arbitrators — Receiving opinion testimony — Xumber of witnesses examined — " Alberta Evidence Act.'' li)l(l — Alberta ''Arbitration Act," 1909 — Alberta "Railway Act," 1901— Setting aside aioard — Evidence — Admiss'ion in prior affidavit — Ascertaining value of lands.] — The provisions of the Alberta "Ar- bitration Act " of 1909, in relation to refer- ences to arbitration, apply to proceedings on arbitrations under the Alberta " Railway Act " of 1907, and give ppwer to the court or a judge, on an appeal from the award made, to remit the matters referred to the arbitrators for reconsideration. Anglin, J., inclined to the contrary opinion. — Per Da- vies, Idington and Anglin, JJ. (Fitzpatrick, C.J.. contra\. — When arbitrators have vio- lated the provisions of sec. 10 of the ' Al- berta Evidence Act " of 1910 by receiving the testimony of a greater number of expert witnesses than three, as thereby limited, upon either side of the controversy, their award should be set aside by the court upon an appeal. — Per Fitzpatrick, C..T., and Iding- ton, J. (Davies, J., contra). — An affidavit of the party whose property has been expropri- ated, made for different purposes several years prior to the exj)ropriation proceedings, cannot properly be taken into consideration by arbitrators as evidence establishing the value of the property at the time of its ex- propriation. — Per Idington and Brodeur, JJ. — In the circumstances of the case the arbi- trators were not fundi offlciis. as their award had been invalidly made. — The appeal from the judgment of the Appellate Division of the Supreme Court of Alberta (8 Alta. L. R. 379), and the cross-appeal therefrom were 123 ASSESSMENT AND TAXES. 12i dismissed with costs. Canadian Northern Western Railway Co. v. Moore, liii., 519. 9. Expropriation — Form of award — Evi- dence — View of property — Proceeding on wrong principle — Disregarding evidence.] — In expropriation proceedings, under the " Railway Act," the arbitrators in making their award stated that they had not found the expert evidence a valuable factor in as- sisting ttem in their conclusions and that, after viewing the property in question, they had reached their conclusions by " reasoning from their own judgment and a few actual facts submitted in evidence." On appeal from the judgment of the Supreme Court of Alberta setting aside the award and increas- ing the damages : — Held, that it did not ap- pear from the language used that the arbitra- tors had proceeded without proper considera- tion of the evidence adduced or upon what was not properly evidence and, therefore, the award should not have been interfered with. Calgary and Edmonton Railway Co. v. Mac- Kinnon, xllii., 379. 4. Otiiek Cases. 10. Appeal — Railway Act — Expropriation — Appeal from atvard—Jurisdiction^^Choice of forum — Curia designata. sxxviii., 511. See Appeal, 7. 11. Rivers and streams — Industrial im- proienients — Penning tack waters — Perman- ent works — Damages — Measure of damages — Expertise — Reparation ■ — Loss of water- power — Future damages — Compensation once for all — Right of action — Practice — Statute — R. S. Q., 1909, arts. 1295, 7296, xlix,. 344. See Rivers and Stkeams. 12. Expropriation — Application to ap- point arbitrator — Persona designata — Amount in controversy — "Railway Act," R. 8. C, 190e, c. 31, s. 196— Jurisdiction of court — Practice. G. N. O. Railway Co. v. Smith, 1., 476. See Appeal. 13. Expropriation — Business premises — Special value — Mode of estimating compen- sation. Lake Erie £ N.R.R. Co. v. Schooley, liii., 416. See Expropriation. 14. Municipal expropriation — Statutory powers — Appointment of arhitrator — Towns Corporation Act — Charter of Fraser- villc — Qiiehec Expropriation Act. Pouliot v. Fiuserville, liv., 310. See Municipal ■ Corporation. 15. Expropriation — Municipal corpora- tion — Statutory t'ou'ers — Lands outside municipality — Appointment of arbitrators — Procedure — Award — "Towns Corporations Act;- R. 8. Q. 1888, aria. J,561-Ji569— Char- ter of Town of Fraserville — S Edw. VII. c: 69, 6 Edw. VII. c. 30 — Quehec " Expropri- ARCHITECT. See Builders and Contractors ; Plans. ASSESSMENT AND TAXES. Appeals, 1-3. Business Tax, 4. Constitutional Law, 5-7. Construction of Statute, 8-12. Exemptions, 13-20. Prescription, 21-22. Sale of Lands, 23-24. School Rates, 25. Other Cases, 26-33. atinn Act." 5.'f Vict. e. phrases- no. -"Avoisinunt ' 38 — Words and "Adjoining," liv.. See Expropriation. 1. Appeals. 1. Construction of statute — " Marsh Act," R. 8. N. 8. 1900, c. 66, ss. 2,3, 66— Jurisdic- tion of marsh commissioners — Assessment of lands — Certiorari — Limitation for granting writ — Practice — .Expiration of time — De- lays occasioned hy judge — Legal maxim — • Order nunc pro tunc] — Where a statute au- thorizing commissioners to assess lands pro- vided that no writ of certiorari to review the assessmeut should be granted after the expiration of six months from the initiation of the commissioners' proceedings : — Held, Girouard, J., dissenting, that an order for the issue of a writ of certiorari made after tlie expiration of the prescribed time was void notwithstanding that it was applied for and judgment on the application re- served before the time had expired. — Held, per Taschereau, C.J. — That where jurisdic- tion has been taken away by statute, the maxim actios eurice nemincm gravaiit can- not be applied after the expiration of the time prescribed so as to validate' an order either by antedating or entering it nunc pro tunc; that, in the present case, the order for certiorari could issue as the impeach- ment of the proceedings of the inferior tri- bunal was sought upon the ground of want of jurisdiction in the commissioners, but the appellants were not entitled to it on the merits. — Per Girouard, J. (dissenting). — Under tlie circumstances, the order in this case ought to be treated as having been made upon the date when judgment upon the ap- plication was reserved by the judge. Upon the merits, the appeal should have been al- lowed as the commissioners had no jurisdic- tion in the absence of proper notice as re- quired by the twenty-second section of the " Marsh Act." R. S. N. S. s. 1900, c. 66.— Per Davies, J. — The statute allows any per- son aggrie\-ed by the proceedings of the com- missioners to remove the same into the Su- preme Court by certiorari, the claim for the writ on the ground of jurisdiction was either abandoned or unfounded : and the statutory writ could not issue after the six months had expired. In re TrecotMc Marsh, xxxvii., 79. 2. Jurisdiction of provincial tribunal — Consent of parties — Estoppel — Railway hridge over navigable river — R. S. 0. [ISl'i] rjo ASSESSMENT AXD TAXES. 1?6 c. 195— R. S. 0. [lOl.i] 0. 186.]— By the Ontario Assessment Act an appeal is given from a decision of the Court of Revision to the county court judge with, in certain eases, a further appeal to the Railway and Municipal Board. A railway company took an appeal direct from the Court of Revision to the Board. When the appeal came up for hearing the chairman stated that the Board was without jurisdiction and the parties joined in a consent to its being heard as if on appeal from the county court judge. The Board then heard the ap- peal and gave judgment dismissing it. The companies applied for and obtained leave to appeal from said judgment, under section 80 of the " Assessment Act," which allows :m appeal on a question of law only, to the Appellate Division which reversed it. On appeal from the last mentioned judgment to the Supreme Court of Canada. — Held, Fitzpatrick, C.J., and Idington, J., dissent- ing, that the case was not adjudicated upon by the Board extra oursum curiw; that it came before the Appellate Division and was heard and decided in the ordinary way; an appeal would therefore lie to the Supreme Court under section 41 of the "Supreme Court Act."^Per Duff, J.— The decision of the Board that the option to its jurisdiction could be waived, and that it could lawfully hear the appeal from the Court of Revision direct (and affirm or amend the assessment) given at the invitation of both parties pur- suant to an agreement between them and acted upon by the Board in hearing the appeal on the merits, and acted on by the Appellate Division, is binding on the par- ties and not open to question on this ap- peal : Ex parte Pratt (12 Q. B. D. 334) ; Forrest V. Harvey (4 Bell App. Cas. 197) ; Gandy v. Oandy (30 Ch. D. 57) ; Roe v. Mutual Loan Fund Association (19 Q. B. I>. 347) ; and, consequently, the appellant municipality is precluded from contending on appeal to the Supreme Court of Canada that, in the circumstances, the Appellate Division had no authority under the "As- sessment Act" to declare the assessment illegal. — A railway company, under author- ity of the Parliament of Canada, built an international bridge over the St Lawrence River at Cornwall and have since run trains over it. — Held, that such superstructure supported by piers resting on Crown soil and licensed for railway purposes was not included in the railway property assessable under sec. 47 of the " Ontario Assessment Act" (R. S. 0. [1914] ch. 195) ; if it is included it is exempt from taxation under sub-sec. 3 of sec. 47. — Judgment appealed against (34 Ont. L. R. 55) affirmed. Gorn- u-all V. Ottawa & N. Y. R. R. Co., lii., 466. 3. The Registrar in Chamiers — Appeal — Jurisdiction — Adjudication authorised by provincial authority — " Supreme Court Act," R. 8. C. 1906, s. 41— Finality of pro- vincial decision — " Court of last resort."] A provincial statute, providing that judg- ments of courts in the province on appeal from decisions of courts of revision in respect of assessments for taxation purposes shall be final and conclusive on the matters ad- judicated upon thereby, does not circum- scribe the appellate jurisdiction given to the Supreme Court of Canada in such mat- ters by section 41 of the " Supreme Court Act," R. S. C. 1906, ch. 139. Crown Grain Co. V. Day ((1908) A. C. 504) applied.— A district court judge, in the Province of Alberta, adjudicating in matters concerning the assessment of property for municipal purposes under the provisions of the North- west Territories Ordinance No. 33, of 1893 as amended by the statutes of Alberta ch' 9 of 1909, and ch. 27 of 1913, sec. 7, is a " court of last resort created under pro- vincial legislation " within the meaning of section 41 of the " Supreme Court Act," R. S. C. 1906, ch. 139, and, consequently, an appeal from the decision lies to the Su- preme Court of Canada when it involves the assessment of property at a value of not less than ten thousand dollars. City of To- ronto V. Toronto Railway Co. (27 Can S C. R. 640), referred to as effetp; Canadian ^'jara Power Co. v. Township of Stam- ford (50 Can. S. C. R. 168) . and Re Heinzte I'leitman v. The King (.52 Can SCR 15), referred to. Pearce v. City of Calgary, hv. 1. J .J J' 2. Business Tax. 4. Appeal— Stated case— Provincial legis- lation— Assessment— Municipal tax For- eign, company — "Doing business in Hali- fax: J— An Ontario company resisted the imposition of a license fee for " doing busi- ness in the City of Halifax," and a case was stated and submitted to the Supreme ^°?'V°L .°^"^ ^™"^ foi" an opinion as to such liability. On appeal from the decision ot the said court to the Supreme Court of Canada, counsel for the City of Halifax contended that the proceedings were reallv an appeal against an assessment under the city charter, that no appeal lay therefrom to the Supreme Court of the Province, and therefore, and because the proceedings did not originate in a superior court, the appeal to the Supreme Court of Canada did not lie.— Held, per Fitzpatrick, C.J., and Duff J., that, as the appeal was from the final judgment of the court of last resort in the province, this court has jurisdiction under the provisions of the Supreme Court Act and It could not be taken away by provinciai egis ation. — Per Davies, J.— Provincial legislation cannot impair the jurisdiction conferred on this court by the Supreme Court Act. In this case the Supreme Court °*t\5™ Scotia had jurisdiction under Order „ Z,.-^" -^"'^ 1 °^ the Judicature Act — Per Idington, J._If the case was stated under the Judicature Act Rules the appeal would lie, but not if it was a submission under the charter for a reference to a iud-e at request of a ratepayer.— By s. 313 of the said charter (54 Vict. c. 58) as amended bv 60 \ ict. c. 44, Every insurance eompanV or association, accident and guarantee com"- pany, established in the City of Halifax or having any branch office, office or agency therein shall . pay an annual li- cense fee as hereinafter mentioned Every other company, corporation, a.^socia- tion or agency doing business in the Citv of Halifax (banks, insurance companies' or associations, etc., excepted) shall pay an annual licen.se fee of one hundred dollars." Held, that the words " everv other 127 ASSESSMENT AND TAXES. 138 company " in the last clause were not sub- ject to the operation of the ejusdem generis rule, but applied to any company doing busi- ness in the city. Judgment appealed from overruled on this point. — A carriage com- pany agreed with a dealer in Halifax to supply him with their goods and give him the sole right to sell the same, in a territory named, on commission, all moneys and se- curities given on any sale to be the property of the company and goods not sold within a certain time to be returned. The goods were supplied and the dealer assessed for the same as his personal property. — Held, Da- vies and Maclennan, JJ., dissenting, that the company was not " doing business in the City of Halifax " within the meaning of sec. 313 of the charter and not liable for the license fee of one hundred dollars there- under. — Judgment of the Supreme Court of Nova Scotia (39 N. S. Rep. 403) affirmed, but reasons overruled. Vitij of Halifax v., McLaughlin Carriage Co., xxxix., 174. 3. Constitutional Law. 5. Constitutional laii: — Municipal taxation — Official of Dominion Government — Taxa- tion on income — B. N. A. Act, 1867, ss. 91 and 92.]— Sub-sec. 2 of sec. 92 B. N. A. Act, 1867, giving a provincial legislature exclusive powers of legislation in respect to " direct taxation within the jirovince," etc., is not in conflict with sub-sec. 8 of sec. 91, which provides that Parliament shall have exclusive legislative authority over " the fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada." Girouard, J., contra. — Held, therefore, Girouard, J., dis- senting, that a civil or other officer of the Government of Canada may be lawfully taxed in respect to his income as such by the municipality in which he resides. 46- hott V. City of St. John, xL, 597. 6. Lease of Crown lands — Interest of oc- cupier — Constitutional lane — Exemption from taxation — Construction of statute — ''B. N. A. Act, 1867," s. i25— (Sas/c.) 6 Pdir. Vll. c. 36, " Local Iniprorements Aet " — {Sask.) 7 Edw. VII. c. S. "Supplemen- tary Revenue Act" — Rccorcry of taxes — 'Non-resident — Action for deht — Jurisdiction of provincial courts.^ — The Saskatchewan statutes, 6 Edw. VII. ch. 36 ("The Local Improvements Act") and 7 Edw. Til. ch. 3 ("The Supplementary Revenue Act") and their amendments, authorizing the tax- ation of interests in Dominion lands held by persons occupying them under grazing leases, or licenses from the Minister of the Interior, as not in contravention of the pro- vision of section 125 of the " British North America Act, 1867," exempting from taxa- tion all lands or property belonging to the Dominion of Canada ; consequently, these enactments are intra vires of the provincial legislature. The Calgary and Edmonton Land Co. v. The Attorneu-Oeneral of Al- berta (45 Can. S. C. R. 170), followed.— For the purposes of the collection of taxes so levied the provincial legislature may au- thorize their recovery by personal action, as for debt, against persons so occupying such lands, in the civil courts of the pro- vince, notwithstanding that the residences of such persons may be outside the limits of the province. — The judgment appealed from (24 West. L. R. 903 ; 4 West. W. R. 1219) was affirmed. Smith v. Rural Municipality of Vermilion Hills, xlix., 563. 7. Education — School hoards — Taxes payahle by incorporated companies — Ap- portionment — Shares for public and separate school purposes — Notice — Construction of statute — Legislative jurisdiction — "B. N. A: Act, 1867," sec. 92 — " Saskatchewan Act," 4 d 5 Edw. VII. c. Ji2, s. 17 — " School As- sessment Act," R. 8. Sask. 1909, c. 101, ss. 93, 93a.] — Section 93 of the Saskatchewan " School Assessment Act," R. S. Sask. 1909, ch. 101, authorizes any incorporated com- pany to give a notice requiring a portion of the school taxes payable by the company to be applied to the purposes of separate schools, and section 93a, as enacted by sec- tion 3 of chapter 36 of the Saskatchewan statutes of 1912-1913, authorizes separate school boards themselves to give a notice to any company which fails to give the notice authorized by section 93 requiring that its taxes should be apportioned between the boards according to the assessments of pub- lic and separate school supporters in the district. A number of companies neglected to give the notice provided for and the sepa- rate school board gave them notices requir- ing a portion of their taxes to be applied for the purposes of that board. In these cir- cumstances the public school board claimed the whole of the taxes payable by the com- panies in question and the separate school board claimed a portion of such taxes. On a sijecial case, directed on the application of the municipal corporation, questions were submitted for decision as follows: (a) Had the Saskatchewan Legislature jurisdic- tion to enact section 93a) of the " School Assessment Act"; (6) if question (a) be answered in the negative, has the defendant (the separate school board) the right it claims to a portion of the sa;d taxes; (c) if question (a) be answered in the affirma- tive, has the defendant the right it claims to a portion of the said taxes? — PecDavies and Duff, J J. (expressing no opinion as to the constitutionality of the legislation), that the effect of the enactments in question was not to give the separate school board anj- nnr- tion of the taxes claimed by it. The Chief .Tustice and Anglin, J., contra. — Per Iding- to'i. J. — The enactment of section 93a was tiltra vires of the Legislature of Saskatche- wan. The Chief Justice and Anglin, J., contra. — Per Fitzpatrick, C.J., and Anglin. J. — The Legislature of Saskatchewan had jurisdiction to enact section 93a of the " School Assessment Aet," and the taxes payable by the companies in question should be apportioned between the public and the separate school boards in shares correspond- ing with the total assessed value of assess- able property assessed to persons other than incorporated companies for public school purposes and the total assessed value of property assessed to persons other than in- corporated companies for separate school purposes respectively. — Judgment appealed from (7 West. W. R. 7) reversed, the Chief Justice and Anglin, J., dissenting. Trvs- 139 ASSESSMEIS^T AND TAXES. 130 tees Regina Pullic School v. Trustees Grat- ton Separate School, 1. 589. 4. CONSTKUCHON OF STATUTE. 8. Construction of statute — Words and phrases — " Terrain " — " Lot ^^^-Immov- ahle property — Charter of the Town of Westmount — 56 T. c. oJf, s. 100.1 — Section 100 of the statute of the Province of Que- bec, 56 Vict. ch. 54. referred to as " The Westmount Charter," authorized the town council to levy assessments " on every lot, town lot, or portion of a lot, whether built upon or not, with all buildings and erections thereon." The words used in the French version of the statute were, " toute terrain, lot de ville on portion de lot." The by4aw enacted in virtue of the statute purported to impose a tax upon " all real estate " within the municipality, and under the by- law the property of the company, respon- dents, consisting of their equipment for the transmission of gas and electric currents installed upon and under the public streets, squares, etc., of the town, was assessed as subject to taxation and described on the rolls as " gas-mains and equipment, poles, trans- formers, wires, etc." In an action by the municipal corporation for the recovery of the amount of taxes claimed in virtue of the by-law and assessment : — Held, Idington, J., dissenting, that neither poles carrying elec- tric wires nor gas-mains, and their respec- tive equipments, placed on or under the public streets, etc., of the town, can be deemed taxable real estate within the mean- ing of the word " terrain " used in the French version, nor of the word " lot " used in the English version of the provisions made by section 100 of the statute, 56 Vict, ch, 54 (Que.). Judgment appealed from (Q. R. 20 K. B. 244) affirmed. Town of Westmount v. Montreal Light, Heat and Power Co., xliv., 364. 9. Municipal corporation — Meetings of council — Court of Revision — Transacting business outside limits of municipality — Place of meeting — Revision of assessment rolls — By-laws — Sale for arrears of taxes — Con- struction of statute — 55 V. g. 33, s. S3 (a) (B.C.)—R. 8. B. C. 1897, c, IJ^— Statutory relief — Estoppel — Acquiescence — Laches — Limitation of action.^ — Per Fitzpatrick, C.J., and Idington and Anglin, JJ. — Prior to the amendment of the British Columbia " Municipal Act, 1892," by the " Municipal Amendment Act, 1894," 57 Vict. (B.C.) ch. 34, sec. 15, municipal councils subject to those statutes had no power to hold meet- ings for the transaction of any administra- tive, legislative or judicial business of the municipal corporation at a place outside of the terr'itorial boundaries of the municipality. — Per Fitzpatrick, C.J., and Idington, Duff and Anglin, JJ. — Courts of revision organized under the ISritish Columbia municipal stat- utes, have no power to exercise their func- tions as such except at meetings held within the territorial limits of the municipality where the property, described in the assess- ment rolls to be revised by them, is situate. — Section 15 of the " Municipal Amendment Act, 1894," inserted in the " Municipal Act, 1892" (B.C.), a new provision, section 83 (a), as follows: "All meetings of a muni- cipal council shall take place within the limits of the municipality, except when the council have unanimously resolved that it would be more convenient to held such meetings, or some of them, outside of the limits of the municipality." — Held, Brodeur, J., dissenting, that there was no proof of such a unanimous resolution as the statute requires. — The council of the respondent municipality, without any formal resolution provided by the amended statute, held its meetings during several years at a place out- side the limits of the municipality, and or- ganized courts of revision there. These courts held all their meetings at the same place as the council and assumed to revise the municipal assessment rolls at those meetings. The council approved the rolls so revised and enacted by-laws, from year to year, levying rates and authorizing the collection of taxes on the lands mentioned in the rolls, and, after -notice as provided by the statutes, sold lands so assessed and al- leged to be in arrear for the taxes so im- posed. — Held, Brodeur, J., dissenting, that the assessment rolls were invalid, that the by-laws levying the rates and authoriz- ing the collection of taxes on the lands men- tioned therein were null and void, and that the sales of the lands so made for alleged arrears of taxes were illegal and of no effect. Per Duff, and Anglin, JJ., Brodeur, J., contra. — The default in payment of taxes, by the appellant, and ' his subsequent inac- tion and silence, while aware of the fact that his lands had been sold for alleged ar- rears of taxes, did not disentitle him from taking advantage of the statutory procedure respecting the contestation of sales for ar- rears of taxes either by estoppel, acqui- escence or laches. The provisions of section 12(j (3) of the " Municipal Act, 1892 " (now R. S. B. C. 1897, ch. 144, sec. 86 (2)) have no application to invalid by-laws en- acted by municipal councils on occasions when they could not perform legislative functions — The judgment appealed from was reversed Brodeur, J., dissenting, on the ground that, as the council had held its first meeting in each year within the limits of the municipality and adjourned for the purpose of holding its next meetings at the place outside of the municipality where all other meetings were held, the by-laws ap- proving of the assessment rolls and those levying rates and authorizing the collection of taxes were valid and the sales of the lands in question for arrears of such taxes was legal and effective. Anderson v. Muni- cipality of South Vancouver, xlv., 425. 10. Municipal ty-law — Exemption from taxation — Validating legislation — School rates — " PuMic School Act," 55 V. c. 60, s. // (Ont.) — Special hy-latc — Taxation.^ — By section 4 of the " Public Schools Act " of Ontario (55 Vict. ch. 60), it is provided that " no municipal by-law hereafter passed for exempting any portion of the ratable property of a municipality from taxation, in whole or in part, shall be held or con- S.C.D.- 131 ASSESSMENT AND TAXES. 132 strued to exempt such property from school rates of any kind whatsoever." A similar provision is contained in the " Municipal Act" (55 Vict. ch. 42, sec. 366), and both arc now to be found in the Revised Statutes of Ontario, [1914]. ch. 266, sec. 39, and ch. 192, sec. 396 (e). — Held, affirming the judgment of the Appellate Division (30 Ont. L. R. 378, 384, 391), Duff, J., dissent- ing, that the application of this legislation is not confined to the case of a by-law passed under the general powers of a municipality, but it applies to limit the effect of a special by-law exempting a company from all muni- cipal assessment " of any nature or kind whatsoever " beyond an amount specified as its annual assessment, even when the by-law was confirmed by an Act of the legislature which declared it to be legal, valid and binding, " notwithstanding anything con- tained in >any Act to the contrary." Can- adian Pacific Railway Co. v. City of Win- nipeg (30 Can. S. C. R. 558), distinguished. Held, per Idington, J. — The by-laws grant- ing exemption did not conform to the statu- tory requirements and were, therefore, in- valid. (Applications for special leave to appeal to the Privy Council by the Canadian Niagara Power Co. and the Electrical De- velopment Co. were refused, 4th August, 1914.) Canadian Niagara Power Co. v. Stamford, 1., 168. 11. Interest in land — Recitals in agree- ment — Validation hy statute — Legislative declarations — Construction of contract — R. S. B. C. 1911, c. 222, s. ^7—3 Geo. V. c. 37 (B.C.)— 3 Geo. V. c. ~1, s. 5 (5.C.)]— By an agreement, executed in 1898, H. agreed to sell to A. and S. certain subsidy lands of a railway company and it was therein pro- vided that the moiety of the lands should be subsequently conveyed to H., but no for- mal instrument was ever executed for the purpose of vesting this interest in him. In 1912, an agreement Avas entered into by all the persons interested in the lands and the Crown for the re-purchase by the Govern- ment of British Columbia of the unsold portions of the lands and this latter agree- ment was validated by the " Railway Sub- sidy Lands Re-purchase Act," 2 Geo. V. ch. 37 (B.C.) (to which it was annexed as a schedule), which declared that the provi- sions of the agreement were to be construed as if expressly thereby enacted. The agree- ment so validated declared, in recitals there- in, that H. was entitled to an undivided one- half interest in the lands in virtue of the agreement executed in 1898, that the por- tions thereof conveyed to the Crown were suhiect thereto, and that the title should pass to the Crown subject to such estate or interest. — Held, affirming the judgment ap- pealed from (20 B. C. Rep. 99), that, by the effect of the validated agreement as supplemented by the legislative declarations in the " Railway Subsidy Lands Repurchase Act," 2 Geo. \. ch. 37, an interest in the lands became vested in II, whicli was liable to assessment and taxation under the Brit- ish Columbia "Taxation Act," R. S. B. C. 1911, ch. 222, sec. 47, as amended by 3 Geo. V. ch. 71, sec. 5. Angus v. Heinze (42 Can. S. C. R. 416), referred to. Re Hcinze, Fleitmann v. The King, lii., 15. 12. Municipal corporation — Exemption) — Crown lands — Allotment for irrigation pur- poses — Ungranted concession — Construction of statute — Words and phrases — " Land " — "Owner" — "Occupant" — Constitutional lam~" B. N. A. Act," 1867, s. 125— Alberta " Rural Municipality Act," 3 Geo. V. ch. S —" Irrigation Act," R. S. C. 1906, c. W.]— Under sections 249, 250 and 251 of the Al- berta "Rural Municipality Act," 8 Geo. V. c. 3, as amended by section 30 of the stat- utes of Alberta, 4 Geo. V. c. 7, a purchaser of lands for irrigation purposes, under the " Irrigation Act," R. S. C. 1906, c. 61, en- titled to possession and to complete the purchase and take title thereof (such lands remaining in the meantime. Crown lands of the Dominion of Canada) is an "occu- pant" of "lands" within the meaning of those terms as defined by the interpretation clauses of the " Rural Municipality Act," and has therein a beneficial and equitable interest in respect of which municipal taxa- tion may be imposed and levied. Such in- terest is not exempt from taxation under sub-section 1 of section 250 of the " Rural Municipality Act," nor under section 125 of the " British North America Act, 1867." Calgary and Edmonton Land Co. v. Attor- ney-General of Alberta (45 Can. S. C. E. 170) , and Smith v. Rural Municipality of rermilion Hills (49 Can. ,S. C. R. 563), applied. The Chief Justice and Duff, J., dissented. — Per Fitzpatrick, C.J. — Sections 250 and 251 of the Alberta " Rural Munici- pality Act " make no provision for the as- sessment and taxation of an interest held in lands exempted from taxation. — Per Anglin, .1. — ^The provisions of the Alberta " Rural Municipality Act " relating to assessment and taxation which could affect such lands as those in question deal only with interests therein other than those of the Crown and their value. — Judgment appealed from, 23 D. L. R. 88; 31 West. L. R. 725, affirmed, Fitzpatrick, C.J., and Duff, J., dis- senting. Southern Alberta Land Co. v. Rural Municipality of McLean, liii., 151. 5. Exemptions. 13. Assessment and taxe.i — Exemption^ Railways — R. S. N. 8. {1900) c. IS— Im- position of tax — Date — ^lunicipal Act — B. 8. K. 8. (1900) c. 70.]— Sec. 3 of R. S. N. S. (1900) c. 73 (Assessment Act) exempted from taxation " the road, rolling stock, etc. . . . used exclusively for the purpose of any railway, either in course of construction or in operation, exempted under the author- ity of any Act passed by the legislature of Nova Scotia." Prior to the passing of this Act, the appellants' railway had alwaj'S been exempt from taxation but all former assessment Acts were repealed by these Re- vised Statutes so that it was not "exempted" when the latter came into force. By 2 Edw. VII. c. 25. assented to on March 27th, 1902. the word " exempted "■ was struck out of the above clause, and in May, 1902, the ap- pellants were included in the assessment roll of that year for taxation on their vail- way : — Held, by Taschereau, C.J., that un- der the above recited clause the railway was 133 ASSESSMEXT AXD TAXES. 134 exempt from taxation. — Held, by Sedgewick, Davies, Nesfeitt and Killam, JJ., that if the railway could be taxed under the Assess- ment Act of 1900 the rate was not author- ized until the amending of 1902 by which it was exempt had come into force and no valid tax was, therefore, imposed. Domin- ion Iron and Steel Co. v. McDonald, xxxv., 98. 14. Constitutional law — Exemptions from taxation — Land suisidies of the Canadian Pacific Raihiay — Extension of boundaries of Manitoia — Construction of statutes — B. i". A. Acts, 1867 and 1811—S.i Vict. c. 3 (D.)—.lt3 Viet. e. 35 {D.)—',.', Vict. c. I'f (D.) — ii Vict. cc. 1 and 6 (3rd sess.) , (Man.) — Construction of contract — Grant in prwsenti — Cause of action — Jurisdiction — Waiver.'] — The land subsidy of the Can- adian Pacific Railway Company authorized by the Act, 44 Vict. c. 1 (D.), is not a grant in prasenii, and consequently, the period of twenty years of exemption from taxation of such lands provided by the six- teenth section of the contract for the con- struction of the Canadian Pacific Railway begins from the date of the actual issue of letters patent of grant from the Crown, from time to time, after they have been earned, selected, surveyed, allotted and ac- cepted by the Canadian Pacific Railway Company. — The exemption was from taxa- tion " by the Dominion, or any province hereafter to be established or any municipal corporation therein." — Ueld, that when, in 1881, a portion of the Xorth-West Terri- tories in which this exemption attached was added to Manitoba the latter was a pro- vince " thereafter established," and such added territory continued to be subject to the said exemption from taxation. — The limitations in respect of legislation affecting the territory so added to Manitoba, by vir- tue of the Dominion Act, 44 Vict. c. 14, upon the terms and conditions assented to by the ilanltoban Acts, 44 Vict. (.3rd sess.), cc. 1 and 6, are constitutional limitations of the powers of the Legislature of JIanitoba in respect of such added territory and em- brace the previous legislation of the Par- liament of Canada relating to the Canadian Pacific Railway and the land subsidy in aid of its construction. — Taxation of any kind attempted to be laid upon any part of such land subsidy by the Nortli-AVest Council, the Xorth-West Legislative Assembly or any municipal or school corporation in the North-AVest Territories is Dominion taxa- tion within the meaning of the sixteenth clause of the Canadian Pacific Railway con- tract providing for exemption from taxation. Per Taschereau, C..T. — In the case of the Springdale School District, as the whole cnuse of action arose in the North-AVcst Territories, the Court of King's Bench for Manitoba had no jurisdiction to entertain the action or to render the judgment ap- pealed from in that case, and such want of jurisdiction could not be Avaived. (Leave to appeal to Privy Council refused, 27th February, 1907.) Xorth Cypress v. Can. Par. Ry. Co.; Argyle v. Can. Pac. By. Co.; Can. Pac. Ry. Co. v. Hpringdale, xxxv., 550. 15. Municipal corporaiion — Exemption from ta;OTES. 158 The charter o£ the respondent association provides that upon the dissolution of a subordinate lodge all its property shall vest in the Grand Council to be applied, first, in payment o£ debts of the lodge and the bal- ance as deemed best for the general interests of the order. There was also a provision allowing any subordinate lodge to become in- corporated, and in 1890 Pioneer Lodge No. 1 was incorporated, and all its property vested in the corporate body. In 1908 a vote was taken on the question of amalgamation with a kindred society for which Pioneer Lodge was overwhelmingly in favour. The amal- gamation was rejected by the Grand Coun- cil and the lodge then surrendered its char- ter, practically all of its members joining the other body. — Held, aiiirming the judg- ment appealed against (46 N. S. Rep. 417), that the incorporation of the .subordi- nate lodge did not constitute it an indepen- dent body ; that it still remained a consti- tuent part of the Association ; that the sur- render of its charter was a dissolution within the meaning of the provision in re- spondents' charter above referred to; and that its property on such dissolution be- came vested in the Grand Council for the purposes mentioned. — Leave to appeal to the Privy Council was refused, 4th Aug., 1914. McPhersoii v. Grand Council Pro- vincial Workmen's Association, 1., 157. 3. Constitutional laiv — Railway company — 'Negligence — Agreements for exemption from liahility — Power of Parliament to prohihit, xxxvi., 136. See Railways. 4. Life insurance — Contract — Payment of assessments — Extension of time — Rules and regulations — Place of payment — Demand — Default — Suspension — Authority to waive conditions — Conduct of offlciwls — Estoppel — Company law, xlix., 229. See Insi'Raxce, Life. and solicitors — Art. ViS-'i C. C. — Construc- tion of statute — Review hy appellate court — Discretionary order — ^4 ;d Wife. 4. Contract — Security for debt — Husband and loife — Parent and child.'] — C, a man without means, and W., a rich money lender, were engaged together in stock speculations, W. advancing money to C. at a high rate of interest in the course of such business. C. being eventually heavily in the other's debt it was agreed between them that if he could procure the signatures of his wife and daughter, each of whom had property of her own, as security, W. would give him a fur- ther advance of $1,000. Though unwilling at first the wife and daughter finally agreed to sign notes in favour of C. for sums ag- gregating over $7,000, which were delivered to W. Neither of the makers had indepen- dent advice. — Held, reversing the judgment appealed from, Taschereau, C.J., dissent- ing, that though the daughter was twenty- three years old she was still subject to the dominion and influence of her father, and the contract made by her without indepen- dent advice was not binding. — Held, also, Taschereau, C.J., and Killam, J., dissent- ing, that his wife was also subject to in- fluence by C. and entitled to independent advice and she was, therefore, not liable on the note she signed. — Held, per Sedgewick, J., that the evidence produced disclosed that the transaction was a conspiracy between C. and W. to procure the signatures of the notes, and that the wife of C. was deceived as to his financial position and the purpose for which the notes were required, there- fore the plaintiff could not recover. Cox V. Adams, xxxv., 393. 4. INDOBSEMENTS. 5. Material alterations — Forgery — Part- nership — -Mandate — Assent of parties — lAa- Mlity of indorser — Construction of statute — " Bills of Exchange Ac/."] — ^R. induced H. to become a narty to and indorser of a demand note for the purpose of raising funds and agreed to give warehouse receipts , as security to the bank on discounting -the note. It was arranged that the goods cov- ered by the warehouse receipts were to be held and sold on joint account, each sharing equally in the profits or losses on the trans- action. Subsequently R. altered the note, without the knowledge or consent of H., by adding thereto the words '' avec inieret a sept par cent, par an," and falsely repre- sented to the bank that H. held the ware- house receipts as collateral security for his indorsement. A couple of months later H., for the first time, became aware that the goods had never been purchased or placed in warehouse, that no warehouse receipt had been assigned to the bank and did not, until some months later, know that the alteration had been made in the note. There was some evidence that H. had asked for time to make a settlement of the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made. — Held, by Idington, Maclennan and Duff, JJ., that the instrument was a for- gery and could not be ratified by an ex post facto assent. The Merchants Bank v. Lu- cas (18 Can. S. C. R. 704; Cam. Cas. 275), and Brook v. Hook (L. R. 6 Ex. 89), fol- lowed. — Per Idington, J. — The circum- stances of the case did not shew that there had been any assent to the alteration with- ' in the meaning of s. 145 of the " Bills of Exchange Act." — Per Maclennan, J. — The assent required to bring an altered bill within the exception provided by s. 14S of the ■ " Bills of Exchange Act," R. S. C. (1906) c. 119, must be given by the party sought to be bound at the time of or before the making of the alteration. — Held, also, the Chief Justice and Davies, J., contra, that, in the special circumstances of the case, there was no partnership relation be- tween the parties to the note for the pur- poses of the transaction in question and there could be no implied authorization for the making of the alteration in the note. — Per Pitzpatriek, C.J. — The transaction in question was a joint venture or particular partnership for the enterprise in contem- plation of the parties and, consequently; R had a mandate to make whatever agreement was necessary with the bank to obtain the funds and to provide for the payment of in- terest on the advances required to carry out the business. — Judgment appealed from (Q. R. 16 K. B. 191) reversed, the Chief Justice and Davies, J., dissenting. H4iert v. La Banque Rationale, xl., 458. 5. Notice. 6. Promissory note — Protest in London, England — Notice of dishonour to indorser in Canada — Knowledge of address — First moil leaving for Canada — Notice through agent- Agreement for time — Discharge of surety- Appropriation of payments — Evidence.]— Notes made in St. John, N.B., were pro- tested in London, England, where they were payable. The indorser lived at Richibucto, 161 FILLS AND NOTES. 162 N.B. Notice of .dishonour of the first note was mailed to the indorser at Richibucto, and, at the same time, the protest was sent by the holders to an agent at Halifax, N.S., instructing him to take the necessary steps to obtain payment. The agent on the same day that he received the protest and instruc- tions, sent, by post, notice of dishonour to the indorser at Richibucto. As the other notes fell due, the holders sent them and the protests, by the first packet from Lon- don to Canada, to the same agent, at Hali- fax, by whom the notices of dishonour were forwarded to the indorser, at Richibucto. — Held, Idington and Duff., JJ., dissenting, that the sending of the notice of dishonour of the fijst note direct from London to Richibucto, with the precaution of also send- ing it through the agent, was an indication that the holders were not aware of the cor- rect address of the indorser and the fact that they used the proper address was not conclusive of their knowledge or sufiicient to compel an inference imputing such know- ledge to them. Therefore, the notices in respect to the other notes, sent through the agent, were sufficient. — Per Idington and Duff, JJ., dissenting, that the holders had failed to shew that they had adopted the most expeditious mode of having the notices of dishonour given to the indorser. — The maker of the note gave evidence of an offer to the holder to settle his indebtedness, on certain terms and at a time some two or three years later than the maturity of the last note, and that the same was agreed to by the holders. The latter, in their evi- dence, denied such agreement and testified that in all the negotiations, they had in- formed the maker that they would do noth- ing whatever in any way to release the in- dorser. — Held, that the evidence did not shew that there was any agreement by the holders to give time to the maker and the indorser was not discliarged. If the exist- ence of an agreement could be gathered from the evidence, it was without considera- tion and the creditors' rights against the sureties were reserved. — Per Idington and Duff, JJ., that a demand note given in re- newal of a time note and accepted by the holders is not a giving of time to the maker by which the indorser is discharged. — Judg- ment of the Supreme Court of New Bruns- wick (37 N. B. Rep. 630), reversed, Flem- ing V. McLeod, xxxix,. 290. 7. Instalments of interest — Transfer after defmilt to pay interest — " Overdue " bill — Notice — Holder in good faith — Bills of Ex- change Act — Common law r«!e.] — Where interest is made payable periodically during the currency of a promissory note, payable at a certain time after date, the note doe.s not become overdue within the meaning of ss. 56 and 70 of the "Bills of Exchange Act," merely by default in the payment of an instalment of such interest. — The doc- trine of constructive notice is not applicable to bills and notes transferred for value.- — Judgment appealed from reversed, Idington and Maclennan, J J., dissenting. (Leave to appeal to Privy Council refused, 18th July, 1908.) Union Investment Co. v. Wells, xxxix., 625. s.c.D. — 6 6. Payment. 8. Banks and tanking — Forged cheqvc — 'Negligence — Responsibility of draicee — Pay- ment — Mistake — Indorsement — Implied warranty — Principal and agent — Action — Honey had and received — Change in posi- tion — Laches.'} — ^A. cheque for $6, drawn on the plaintiff, was fraudulently altered by changing the date and the name of the payee, and by raising the amount to $1,000. The drawee refused payment for want of identification of the person who presented it. The defendant bank, without requiring identification, advanced $25 in cash to the forger on the forged cheque, placed the balance, $975, to his credit in a deposit account, indorsed it and received the full amount of $1,000 from the drawee. After receipt of this amount, the defendant paid the further sum of $800 to the forger out of the amount so placed to the credit of his deposit account. The fraud was discovered a few days later, and, on its refusal to refund the money it had thus received, the action was brought to recover it back from the defendant as indorser or as having re- ceived money paid under mistake of fact. — Held, that the drawee of the. cheque, al- though obliged to know the signature of its customer, was not under a similar obliga- tion in regard to the writing in the body of the cheque ; that, as the receiving bank had dealt with the drawee as a principal and not merely as the agent for the collection of the cheque and had obtained payment thereof as indorser and holder in due course, it was liable towards the drawee which had, through the negligence of the receiving bank, been deceived in respect to the genuineness of the body of the cheque, and that the drawee was entitled to recover back the money which it had thus paid under a mis- take of fact, notwithstanding that, after such payment, the position of the defendant had been changed by paying over part of the money to the forger. The Bank of Mont- real V. The King (38 Can. S. C. R. 258) , distinguished. Newall v. Tomlinson (L. R. 6 C. P. 405) ; Durrani v. The Ecclesiastical Commissioners for England and Wales (6 Q. B. D. 234) ; The Continental Caoutchouc and Outta Percha Co. v. Eleinirort Sons & Co. (20 Times L. R. 403), and Kleinwort, Sons d Co. V. The Dunlop Rubier Co. (23 Times L. R. 696) followed.— Judgment ap- pealed from (17 Man. R. 68), aifirmed, Id- ington, J., dissenting. Dominion Bank v. Union Bank of Canada, xl., 366. 7. Ratification. 9. Bill of Exchange — Forgery — Ratifica- tion — Estoppel.] — Y., who had been in part- nership with the defendants, trading under the name of the H. C. Co., but had retired from the firm and became the general man- ager for the defendants, but with no power to sign drafts, drew a bill of exchange for his own private purposes in, the name of the defendants on a firm in Montreal, which was discounted by the plaintiff bank. Be- fore the bill matured, X. wrote to defend- BEQKMAffllDANaaCIEia: 164 aiiis informing -'asmwriiHhsking used their name, but that they would not have to pay th«nJraStx SiajjMBBiH-iottpfcittriQSjtia) tJeSjinaoiSed bSw'ilieaoompfenV) ip^ii3i*iM(ia3Sl-^ne3QB^^ BeiftosV^nts-) A«fud3tih8baiaie^d8-feiidafi.t-4r*piBS se«tDiitiJ:--in-4tJl*ffi»bdBto (Jjoswniiiea. 4t- \siHnrfia41y aiiditeiiia»beob*B)a-tr-'S4J:MiJiSt'*»g4iJDtUiwBnroife notawoaMyc^o ■8liakyr35dQr.Ja*r[SaJkft^'WfliKd4 gilW«l)ismctheIJbaiiiiiiJa.-ua aaramifieftiitia bill 9ity isargfiBHji, arid taainslaibB slitt asnieiuHfet iW&IfceJnJawagte idii sneteguecdiiJisai^stbial; it) \*a8vtoc(o&tferitha*;4a|i9bui9'heesTOa'ia sBilfl kaib^vm tiiiAapcbMctwiitii. JdS'aiofliBqiletaoia geatjuBiid laoiiaivr diwsdbtiSdrfjiiafthfe MDC vaAi (tdtetHthfeJmankgSS^aWoaoaiiitoruofJjthBiitaiili eillle(5)9t!eI(te69ffP9Bi6. Esgioiid etiikedo wlqa'ih* liadqftbt sealj tteaireqafti dHetiSMitJaahtliat heihadJpfcoBiisiai tbudo iso/jsaidbat theutiiwe •liBtlAou8i!i'PBh6 srttuWoiiWfasBnti80tioBa*f{«*(iS?otirat WietS'odgBnliinCioSititfei'Goaiiil of aipBsalJHtouM lb8fIai¥aieS(iiaiid)t>theiIti]3iiealcdlspHBSodfDwith kastsifntlialdil j)ErajSi»9'W'jfiJail8,itfciiie, JCh^U mliallpaJInm^Jfnoid JaadBbsdstchuofeltiiaat Bam henratifieBpufol^rjfjxsdarinDt, oanddothaiJ the ibaiiitoccaiirfil niotiMarb'ferGagidiiiiiiJriithe llefcaiflt- ^tfe KfaJiiheafrM'gafl bill. 8f)l]jwBto»4efasiUacg?!t4s £mHiessha*leS ;i64-SE <<3m§ait^ IbMeS to «im?iM5ctar#%1!a'iy *1gM%8*aii}tter 5iio?l««i*iillofe"(« ■#ifl^a^e-i^'S0"£SEu9aienibl> SSir^eSetSt^tfiteo%B«Bi ^bKS ■yroe&edt!s«ia*ra MJeAtfftfflSfJHf-sufeWefeV^-'^ ^ tSe^-^iile •ifae6§agtflaai(M- slgrifeeV 'art %i}Mi«'Ai6ftf i&if #n='^«fi^esi.ioigiWfeo55ayee'HM9?F(7'th^a*ii^l8i of his pati96 e-lfxiH.^fentfe'a, \i*id\t«fta. Wi^l discount these notes and received a portion of the proceeds, partr-treing retained by W. in payment of debts due him from these two parties. On Wfalr^oIi^jatidJs.'iby W. on the notes, the evidence of T., who had ab- sei!diVJ®d5-^wV(l®'fttoBeH-ot!ndA55.&)n^i^Si8n .find Uswjvai'U'thdtWife (Sdimi,of-ailjiiliqq;tto!ffi.eignaiil fe^fjthc attslJTO'ittivielalefisnidalBtsibadijliiseniatewn bo-iW>:i \M4ic4itibe..nikeB wK-esdIsdouBitBtb Wl (TesiaedlrtMs^anslflt-WKMreotHatidie taft bdduntoia thwbythiji tldl(fs JroirgJgisfBiDidh gifetymdnt93rf stdebsdH*l'/l)^otIilad paye«.-i*-7;6aB^-ibtha^3tb4 erfidfencffaslit AMI) .oi aurtajnutbeJoniisi ofcr/praaf ilestted, .fcic«ii*niybtri5)efn-HbceptBd; aJtiEttaotWi wSble.ilitflsitiMtnjiiliKiiiiiilJ atfteWamtoDaili'curaf sftanfcefe ehewiedvthai Wa'istiajiEcMid Sllat9tb* proceeds of the notes belonged to the com- pany ; and, having discounted them without iaqniiJyiasgttt flsie -aightifaf btBe pajste^IaiuHE ttsSivdiSmiihesE tew^tds, ilk -vats bedtiim saai f aildi gaxrdJasdoidi 9i6t ,3aii(t\«eanjibl,a&kChcite£ amdtsaiM itiSfiV hosnoiiaibpiUr'pastsn alU knsisMljieB stt^ litUt toldeorbWJ swar4 an*ifiie9t(iiial i^ddgeaiikuid 4s!Biitwiii ifaart:oibennstQS9^sfetinot(tteib^di8dd| uiiitildiii)liedibeeii'ootiifis>#iaiiid:iaiiShoiii!le(}i:l^t -uasEi EQife lalsDKBfnnntl>d:lBi6'rtlKi9(U&aifiiBdtaAQit atjtendifflg bthE -liisDjAiiiit iat) tto aioOfcbby Jtht :bi?entuweEe9Sb61iE a8glitEcpiKiIthb9faiild$3iIt)iiraib' ifmi^aa too tbetialfeteiM anitUferiliy. 9%iugl:fim firadddgxftms ■aMtaspAihpithtslitiaiHB dE&(^ppe»lt ffi-UeM^iaiffiraiHnggthfcijsBirSineatiajfi tbi Gshi't EljrJjjai8fiiM»*e(^hat sfeiiEsbffli:fami982 (Jtiiie ffdBiliaoiiJdBlxeMaLngietlAQtiaiaidsaifct ^.^flyTlaiil iHt boldofcBcdidd iEod)r«t(HifcleryA9da HtWjg^gih iDaidJBS addl 3&nglih;iQrd'bedC'berQdli6ing:9of atte diillBl— juidgebrtiiia^Jtheit oiBoiisistananlaJitievte •arflseuBptoi 9wlalbh79tIjerBisgetrtrihH& imtSiidiity to u^iiibeldtiAern^d mittsa oteaieJ^nrirodK ei to jHstifyifflDseoarimii apptedldt8iic(iu!rt9i)n aattiag itIJaSiiec4HH"tei^ pe6f Mi6:fetti(iit,B[r*tSDlje3finfc- (biligb3]£^eextiaa^ajiidgsIJthsBt[ltl&HiiiioMeo teai ^■nt aiBittiquiryiakBio stKB aganbfeifautftbrilsf teaSJamlstlfled bjBofihs'isiridfenae laaidobai'Kitife fflghbBlfo '53aifcbvsn«iMiSli§95)eoiDDii£6} S'ir-4E^ ^ULAeimSd lafatabiislM^ ttbdtt thdBsgej^ badi-mil) ■autbdititgg£lal9use)tlie-/notaJ5 ^(ct^miiWillsum, Mb., Mdfl. 93n9biT9 9dJ JBtll jWsBl — .maiob 9rit xS(9»tt;iH — .f©8'«/8Sft>«J& 4«.fii^e(t5ei*M0(Mi- -j;49riJa^e*J*ottoi* settsJ'fecJitfwbws Si&iiJSlJi •Mfet ctefli«fg9rr7Tw8o9li4dtoclt(niga de->Jffi fljsaiKPial affifiSs^qwahansttuBlilor^itB have the note diftft&ntsd/cAu%o'»^tWbutf W" thority to pledge it. Without informing ■tte ibagjlfa Qfi-ias-^^astritfticHipcisSiesfjittotteel \^tli tbISiiio'Ce)HtfeaijiQa'nagB»«4«pi>s\t8^ ittwjjfe^j* bisak\oagHi(a)lla*fttoii| SsfiB(ui-ityi''5fea)'Slth«3aiS*t 'pBXiSli eunfeatirdiaibilitjifi aBi^Oin-*«fePS^to*' tioinniM 'pBDcTsiiiosit, 94(KtctjiipdiffiBflsl6iatea9Jal SMntfliipe.iisDnk'toa^iflMW-pta 46 thgicensgisiials tuaSegiBtpajiij ^fijBafcttlrJtyiMil WteHBrfefitie hsra^Bf jtaBBi' sllftd nlrftlw r8t)itif«^naiBin«06dOW!i ^afirloorffl tSffi aifiiat*Jin9i!9 »«c©iTntt)fl»i5a'e.«8 bon-biedjvihqt sfehie igfeutfmtl^jidjiit^dsifissi (rf,JftS cBrtipgirisc-icaasforoleitiDltmito' ^amfiHfesfet«. 91II no olai b9i9:*ii9 gJaernqqE gtti ,aol2a9e80q aeiel S?S SttTTTflli^lTd ■Janraafi 8b biov -ai-2footaSgg}D3i(PTfigiaA§e8ogB?Si-JS99i oJ 9.dl 5o aobB'iJaiggi sdJ JcdJ ,MolV — ; 9biri1 -aclSdJJ!featH»§ »i)©ft9s»asnS««S »la€dtn^^fi- ?4p«s srf^ej 6i«s5-i ffll^g .e..309-a &Wpmh'-i- ^Jl(>i/-9tfel9i.°®4??9^5 ^t" -igJiB bgilqqijii 07 elnfifensisb m1) r^XUi„^P»L aurio 9d) .9Ib< -aoq 9dJ ni abofff ^doS?r?MPVi9Jt JndJ -wod^ edl io 9raiJ gdJ JB aTpaosJ-iom -itl} 5o.i[oi»a9x -hJ*'te<-.Cf-3^fi?fiffiS)o/."B'n^aa.<^#iifflTOTSej»- B^1r^«^«9ea^■?^MJ^!lmi-iP«S«fe*mfi 'fifT«tre48r«Trt- W'M&fSf nSMfraiioQ Qmttiimi •fmnts^BauiA- iiidei mbofjBTse,,^y'f.\nZ'!3Bi/.h3. o ".JiA .Ij:^ 9d} IB ,ij»(jff Ej6BN«[?itf JSD'C»yfiE¥¥. ""l' O'i oi'50'^ 35) oalE ai .Ji'^EbiftB doua agjlRin 9ri siriH cheques — PaynlenT 4W'ie^!!^tMiH.¥'^!m . ^ -.-., M^^-ofyif-^rt-em. -^Mnt(^e,^ir^&CfSwtaraiiQ(&cwiHifi^Hi- i^vifi^iiowi moirtgmgiii^iie baiidenoeiUJJttpxe vf! t4M»(wMflp6fef?^H¥i&^J404uu3 a'duEj gdj ,SmJa9^8if) ..T, .riolgniCT ,(185 .3 .J .JuO ■101. \iV.V,i5Bi5 ii',.1,! iriiV.i ..vil .;i:aaaAD BILLS OF L ADING. 1. Sale of, aw^-f^isneasins^ condition — Term of cfm^^etmrf'^^PledgeShip- piag hills — Indorsement of bills — Notice — §mmA» if MiM0''tl^Mbi^"-hmin3hi 9d hbo elsa . -qi-i3a9b oBbsl^^-B^gg'-f ¥gSig«>b ioA sd) an Itid A — .algigdJ bsai-iqmoD 8f9J}Bdo 9dJ io noh rfe»clS9Sj»Hi3fiedl bnB 9}on 9dJ io a-iBluoiJ-iBq 9JE1 9d} Jud ,5oSwdC9HSe*«redJ no gldB-^Bq 9lon 9d} bnE b9norJa9ra Jon 3BW Jae'isJni io ri)!i9i)^j«jMsJ=i-A»i09*e49 Wumk^^^^cM^Pkl'^^^yiij^-'Mb^^^^ ^'%d^. mW^o,mk.B^^mhM§- ni .afjoa W9n 9miJ 9mBa sdi JA^ bea-iobnL :>-trrphrtol b9Ad^«ftrgg^^^*5g/j^^f|& ^e«afo 4ridc«ist ia'dHawiJ''- en- *eWnij»E}owhaa'ta'i)wfes-Jg«!ii4em'«a«b3\otlfg>S)flgirai rules as toM&ts.vz^to ,app4aJ)ilo'i6&S('8a0'%4& Court was i^gj^s^jtqjijjijse^j-^^ns given in the court below. Laurentide Mica Co. v. Fortin, xxxix., 68(X 4. Title to righ ts — Prescri; -i\T«n' ^•lof'i'iS'iS on — Riparian Hull V. Scott, '- — bsioS \o HoUnruiO'it\x'3. .1 a — a.iH iinVut4on\!SHnir.-j-»St-io ifaft'HBofff T-icfea-SWfi W-blfjDv/^^aK BKtff ttoQ Bill io g-i-io-rr adJ loi xioil o}_bn raoilp.ool dDua.suiv^aix uBln b ,j}D lasIS a^roi 9iIJ 'fd bs'colqrne aiavr •cuBCimo) saaaasaj ,-ioi aoiJoE ub JriBucid .buEl sdJ io -? c8>l9H«a6i fiflo mi traiW»!i9'-§ J 'ft-iit MMmi iVJ Vy,^^. ^'S^e^Wn^fi-^ .89hKbfluod ^.FGcV J-'/ifaz , H»n HCvIoU uo'Wla ^,„,,^^^'5iiMfi#v'^ii>iV5-|?|fM^^B^^^ :4?6f ol 8E noi}?.9up 9fIJ .g\iBino(5 ua b£iB stioJsftcv Ju^joMuBJaipiifoiHaBrppJlffitfdTCnsedaodndfiti^ vitidAfiiBmjefsi otsuSiBtKBawife— Sa-id^efc — ^flb»fr ictmtne't^'ibi^b'waffll—tUiavi^Wtjpmf vd^biuiti^ !Mii.tiiefifio*orBpiaih»flOktaj!0sKS ffiDSla 89iJi9q •■' «"»'^ee%W]!T*»«e>-oJ#LiLau-eii A«^/io^#r#§Mi*!iii aWea"^yi^*V5fi?* W^n9in99'JSB an io noil B 3o zs9niBiSlPebWiTJs»iSP0siimi'O9di bsiUnnR 9ldi8noqB9i sraEOad jlnsd grij '{aBqmoD Isim b9}i8oq9b bBjd oJw Bnosioq io arnlBb sdJ loi 9ri} 91U998 oJ .biiE .v.aEqraoo sdt dJiw Y.9aofn B imoi buB 'c}iliBaBIi>6ES.J99q89'i ni ilaBd 9dJ .p-ioJi8oq9b oJ aJa9niicBq J99m ol bar/l 9Jqa G5«*»£BgiW^»!^o^lWftMS^l-9'!P«PW«ffl!>«aa ?^3WKfcefe3ii#i.?^oft8f»«fe»*(!w4S9We(P.*/9^.?-*i$i. ^njJI^TOC^p ;^SSfi?,0 3^. sdl ,89iliTiJ093 ledlo -bl) ..T.L .■ii;9b^?Fb'SFSHiBi. ,5 rMw«ftAyfe#7iId .fi] sdl ll^iagi .Mra?i'ffl:^^.lSfiE5fl}tApoBtKii6iao3 nBoI_ B 8B b9i9biRno9 9d ol 9'i97f noiJoBgac'il -BSdi&eimtnetikm] <^d ?^g*M&TT/feo,Mmffff !» *rM««8-9£Bntfiiip'-ir^«ii*«i«bfir(S!«e(S««4OT& &iiaw(i&?»x(«l*{^Tr3oEWwoiH|SW6."i',mi ^1 =tfi/fi -5*a- 9l3J-rioC<3!-p,98iiM SJilflilS?™ 9rlt 81 li bnB ",1dA ji8t(j^IS*r5Mttji\<5»* ^SD8 ..viz ,Aiin\ S)00», ■Sftam ■ i?m-XMai4ro'4'MS A-WiS^lftW TOe)-wrt.]^®/,aa:!*iiMkeigTttAateBto8rdBto obt"^- two lots for F., as an investment of funSS' supplied by F. fo r that purpose, at prices quoted and on the understanding that any commission or brokerage chargeable was to quoted receiving, ^wiTvK", the full amount quoted from F., and, by representing a sham purchase .WAflWioMieialiStjHgbfcaSii advance from F. in order to secure it. — Held, aiiirm- ing the judgment a ppealed from that H. was the agent of F. and could not make any secret profits out of the transactions, nor was he entitled tojajm^^ltavance by way of commission or brbKer^^Tn' respect of either S^^f land- aCT atm ing lands, agreed.JJISf) giiiei&f. ^.oi5*n%Bi&b»to for effecting a sale thereof. G. introduced « Btf^feisw WviM^iuanii antonteaflboler .Sale fll tB9oten(teitart»liiiiWrcto6eBlwAs-e|j8iHiiiM^. {BbWqTWadgBlacisddbyemoJIatsrB coflti^b/ihy «lSidO ](toz8aleI}Ki-iceo>>Wi?«iJ(TedwSBiiiiinjcaoiir •Md6j8ti«*t at as ismtmbfisme^dovii thsuois*- Bfir«Fi*«iBa(*wftioS9*»Rtft«"»Mf«b»seTgiwl»p »tsig»(idolfliisi-isf*esesfa»Hotlii^jc(}nitatgMi^o|iintli«>[£Ojiiidriiie^- Mc 4&»6w»rdB-iisilW}dhft(fiiiiiiJnin«rtiaj8idtenIt®d» jaafcsfojji. bw0iilgic4rtoi#Ar missM ,0fl«eHOT»8?&tipifedEWltfie ^rrfae^.^eit dered : — Held, reversing the judgment ap- 4>eftl§4ofWffl jaoiS«PteL.!R.ngi'?)»Sj*ng!on, ^:Ksdj§^991tjiiatoMig*fttiBff 5fei(4i»»(t ^JjWft^tSJ** jBiesiei89i9»cfeia»n^aa^9a-ifel?itbi^PSfvieefo-Mi SSSbI io JRJI Bid ni 'r.tioqoiq erlJ io noiJcji'iDs Mitt m Wlg'^^reemf'SrM^fSfe ¥nftP'iyfksgrtmciiaim J. » uoi? 9''9nOT 3oa bin 93BnDii;q of non — Principal and agent — Action — Evidence — UntabliesmmAyh'mnjasKtssidmieitiiiSSSlinSBi -6tJ}6%]»-(fbnuairtiojjI4iy8TO2brnkeillafeaiiis*uhife ■if^Aoipah-t^m a'eooivfaKi Boilfairaslasali ■laidnwti- ^BMsiS inSMtaBBib'iinKE^speetB'cf 9sfetfe8qaa*/t«j»- -obageseidf irocais'iis not' aS iotfibifceupont Jtire assnlrae^ dfeisalsrar .pJutsoiiafettaan o*bi6h 9S«i- alfetoOEt iM Kwintiag 'isbteguifcsd bS^^oelaoSe -siajiir aiif 81*11285 of tSe Oi-Jtit-it^ im'M'ke^'^ffmme 9diLt4bMpWpoprMg^Ui'^<¥>uiliteS"''^'-^'°(yjii,- iaowfe-b*7fc^ifeS({ j^sjSiiiitlrdfliil^i^'fiitelmi- 9dJ«.i>»e@S!r 14tlf"i}fl$f«st?oi80iji,97[ii«94^fefi^ .aaifJiwii*S£^5ide*iS4 lawiSftffliBte fm^fsdtid, sS*wl» tft«BfoBJ.wtoe>fletftrfJW tBStMiMtJffS, .gB»i4or6M-tliBV«3Miioa4s 4fc»Ao^!HTEMpfttlntiffs, a*h)(?T)i»s4ifb -aaf^ondireiiaaK^-effiTihBJ \^\lniip^ .&BS&m^si^sAgi^ 4c»lBiithlg:aiaJ3-at[38^Aosiite aradfe OQSoaiiiiJ;'ti'i»'ifihii»uitiiilisBb5LsiB^;ih'iM!saiiH)B -ja$sEnflt(BcipliintJffeIliftn-ehasddOllltt ^ferrtBitisfv/ofeifc&tfesabsbpldiuart: .aiai'igd^diticikladi ^mifeidnBidijlebBlfd'InrfE tbeadMiis'er:W anB dJraugSitiJtbe aetfitrndbd'/rseBraBfeitfeeiAtnloBifteletf *}itaatblnKS841ifi9J(fajBtai3nM:5*i!Hie&i, ycaiei^ng -fcbedjiisliE6ne]ii4i;lq5Jpeaillfecto'fraiB ^18k Marae-ffl. tHillJi'i thailb ftii arttlkqrity si) gqaEfD/idid just (jflftheifibP'llihffi'pftafiirtiff.'i^itorninakfeiai'HateiuBjdHr afi£ "QinaiiairaSMiilJabge Iffiid9K)fn])lEdri!r,»-89ttp4ja sItoivdpriiBiBiijaliiBtMt noaaAtrstctohifadfaigion ihegpfclDotpitdbiidiicKToftiliiseaTtdes hlidii»4Bh -eiitcttiadf iirirosifensldJcaaBciijuBntlji, itaivhe wte giijt sMWstegtD .SteEBfidfeii^eimidiBif) canyg'iosB .Snaaai^ flj^grpAsdn *f;jtiaiKrfct))itra(ntern:S!>t{t- -t*i't. .3fi«lp7ia 5m.,.jSafS. 01 .s,*;; .oZl .il .J arado'id sdj inAl ,^ai]a^^^ib ..t.O ,5bJftnq itfiwris sfrfifti!!sci{!Bfl}ainiJaBffe}jt9*% JJiB4l;tti^il)9s»- H)(^ 6o»tete/-9&i'S^"'.')o«96«fofee«f'?>SBotoJ§«Sftrta^S*B»»?M/,fl/rjH«J«t 9»diw&*.<»» Pmsi'KflMw jmfmwtfi Tgififosisdrnr iht JM(W-t.,llttclfrftHGP*#Setei<>Mpi-i^u,W5>^ fi«fia»ta'4i?P»SSfi(Js-ftB[3Vtet!%a|i,Y]%aSl*iffll% flftre*gfiPiIS^traHp-Hi§sl9i9!P«*flJ Oli^WrfP ^fdr meliMSt&mrR^^m iGOf-i Oj& CSsiift^ttjdOigvib •GsS* 3i8S*ci?An'»T. .oi-[nJriO io JoA 9iuJBoibut .OPC ,.7xzz ,no8i 1) -oJioq 2. Puhhc tmrks — Contract — Change in —Words and pTirases — " St^mlaMklX^-^-^B^ ^dW sm^imm-^Pn^mkcW^^i9'%M the woWfe .-^J'fe.'iyMie^ t'6 v®4^'Mcu.fei%§ made the provisions of their contract inap- . ^ieSBM-aft'a'-tafttJiefflejr W«fe, \«ofl5iS§'ue4lly, ^»*Miea-tb<'i«iftoVei' i¥>9»'W'*{J^!«OT*«»«"»«^ftJffi iIf'a%%MerUh m'^mk ■*Wpttisssa%kH>lig-^Ai:-t»&i ie»Sas»i&sr^p'tt> '^Ms ?lnfi-«ti^lati(5!fi«'5tolkinEa'J'S!tl^ias8 cttlt iffjil. icB^itte»sjiiat|flflMt aSpealM^rdm.AJft ffiSfe* dPitfiedf):^4^l fti«^fiajoOtl]»«<#9»ei' ?fll i«§M«8« km sim^e.sMi W#fteif>mtre3t t!«HsOgr-?effifiefft*#By9feBigtien6ii!^liMoJefegftl 6?j(i5t,#dg6Ip4p -^gMOiftp^tovisiBtafflJ tefeh lOflffffi W^Sp vt^n^i«jT4-fB*-Hia-e?gflfal-®f2f t oPteftrf'lhfeiHhMaintds^fitflatSa fiS'«i«ir(Mif. T^-roSiOT^e 9*e*yva*d-,%j9j, ©ao^iggstft* -(Wffli^MJte9«3«dli?P'89SiS* g8*taWefidlu# ^pb5ft)f»po«t«bmj?qafid-icfe#tf6ofa mms- te%"%fe«9'*1itipli«i!ftms,'««-J«ot9s>e''firse gaift ^f^Yhe ^ecifou. -ftfefre*! t8) ^ettld f>fel*-'a!itt- figed'tife %flin69^?gKfflofiB"fetiiSS^ ^ tK 3ond"f-pa?t?Jfe¥ f;fie^-S5 asWpplS^ risttti8«oflFtte <*Miffi§ra'netfe'ifdi' t#«iBi5as|J ikteseofceaceriiiwiu We "e*!®*St?*%9 (^iaB'%ilEio««3pftJeel'iihifflfr Wlt^ifeeiBeifartgdtewm ifi9ta!l9i«lofiiTOi'J ffil^ Wedfteff<^*?af»9«l:nbr9d^nier iSim^mfc #9Wsiy^S^'-"»iltl«BHie'9?f?fjdigdii*S* 9f"t«* ^t3'ee,'8i¥aiti«ii6. e5n*#gfl«l>sP* ttee^eoaifl ftibt'BBfe3'H''fl'eefJ*els> iiSf(too*«Wt«*ii"»l«'« i%Wwuf>Jri^j«)f'v. ^}teMim'>yii'i^^-i sow* — .Tf»i'ni« nMvMijui'p 10 "(BY/ 'id noiJnaa'"!'""'' 9d} isbnn ,bBd i9j[fid_adT — .t .luebo'iS i^l 9lr.a 9dJ 'loi viiiodJuB lBi9n9S b ,}a9(iB^'iS8 -c-iJai bni! Iwi'iJijA'MN^'li'SFfigist""""-' "'• '" blrjoila -jd .'"•ioJe'-iodJ ; -leaBiOD'iuq' 9ilJ h'mb ages I'fftMjn^rmrvfsmmieMWM^ ymnii'^m^aiSi'^Rm^^m^^cf^rfi^Amsir ment of domoff68(-^»Bi>fej't«3l£]*^*f?la'* tiff's auteur employed the defendant to instal -S.%0!>'\»Rttc«t£jtte««9p»Si&te«fe'"«ih\i*e\'>y«Md"Bold- Jsim* iliabldttor t!l««si6«ailiges'th«sii's«s^aiisi*(J')"9sS*)'>eqtife869d hitft*'fo-attStta>Tit 'Ani esjieiiti ivMnatJaafctoafee madisobybfite iilStfi*Wce> Sldjtiate«9iwiia*'*lira- t«)WS3l)ut«pk'te(Sffi«E'h«)'43^«'(»ii«9l sessed the damages, in the manS^ nMnsi&y adopted In similar cases of damages caused by v!6ret5Hat5o$8i8a7'Jl— ailii}> theiSipfiinfiE's a4*loii Vasi^*«r>fUriS)iataJHntc-w*tli*'amnuii»tS aa{(siiss6!ssingsda6i^!estadopted jwass^i ip,ro0aocjnt))ie sto f toistawi'undipKltba scijtt eubistatacB^iOTd \stha^ the «Be5^i»PS73^KpSi!t!s» fees^anftiicoHbsitofinffottitetiBferiidlBms afi dsainrt- argBSiiwtoielir could'upraijifily— beSTricds'etaedndii thezjactibn^ii 5BMsoaeeisi affiimedi^t? the Supreme Court, on appeal, Davies,.C:fft dubitante, for ttaaT«as'dns)5given by Tellier, J., at the trial, and Boss6 and Trenholme, J JOtO hl'j the-ce*K4iv«jtj)ealedC;(ftojni:j riMcfltCre V. Fraser, xl.,,^Z7.|.7izzz ,'«'>iii5ot \ni b'^nim ing capital on ?eft3j)f JeiS-iUithe bond issue and cash on band. The offer was accepted ^Jd,San<'tEfe"gt*3ii,»5faBuea'^aa'tulI5' mtd up, tlon of Mechanics' anWW^W' R. S. M. 1902, c. 110, does not commence to fun'Wfl!'tRereriirt^1l)feSi^u(*«Bi*W-n^tce of the contract"' 'Ifs Wifla -etfiMe tte-''e«& tractor to maiatkiiSr&W'sictiok for the whole amount due thereunder. — The judgment ap- pe9iaa-€iiaiii»'i_(il6 jMkpitm^ S«6)',-..-#asTrre- versed. — DaTiesf I'kEid'MaEl^nbtoji \KIV''di®- sented on the gp^gjf^-^tjtgit^'t^e evidence was too unsatisfactory to justify any extension ^ feS.TTC-ffl'fe^H yauvfc -iP^TOe^v) ti?,-s fljiftslp f he apPMljjgBatlaB gm^A\Wat) tlie Ti'^^iSfrM: rt%te4**koi^ i\efe™^ tj3,-,.,it'Afiirmff(-,4W!.tp Privy Counci]t.^90^2^4..^l3"AS§Q«<,,t^c(WrY, ,„,,^iiiMfo£i^y8l¥^ not attach' 'until iril,^s»I)-C l'.-''^>«Plhe'"'ict t«t^;»r^-'.mi#ft I^Ka-bl*' Tepa. km -gtw^ pP'-^me "^mm «8s^«Ss&':>^o(* ^'6? a^ ptii& *ff* smv d»«!*8i^^T5ffcVt*'R)>^%%ll -laW'^ the compabi!rf.MEiW.a, laillJainalJfaBBfth work- r«,rt a8MV«# the company was not liable under the Me- chanics' Lien Act to pay for the machinery : — Held, also, that s. 8 of the Act which. re- quires the owner .fliH'itain 15 per cent, of the contract price until the work is eom- plefeft dH iinctti lapply lasi 4o.?,prIoe(*eii1fbuSld- ingi thevpiill'tftas-gpecsifiBd,! buteithevpAee #iSS aisaofciatedjIptiEiCK.— ^heiii>consid^Bati4fis-t6recm wiitehiib aaifild-nB t fib& ■ise|)ftratteds T iSr-Jtf o?5j7a»t Smithn iS4i.5\^-S%sBiBeo iU%i#ii\8»^ dustpan 'Cen BBTf I9C00d33 B9J3J8m-e9'IcI} fi gtidT/" [.l!0'i^ f/-atSSJSse»/«iiB-i/ -^sdajwJteai-ftSespaMiji&Hsiw MThletMeGel Oov/r casife-aabjli-ssfeittqpdpmbang SUt&'^iSegdtagita.'.i SbuiWfag '.tffidier taioatrTOC!- tic(n,8Jsu}j>l#9t(aa: ^ecHieiiilJoiBi/lEraaduio.aihe B.-ijeto.piWtiSiP fenamifeotia-Bd ^iSi^ itnedessary ifl«lt8rMdatJiAfeih««t;?N-#.'/^afiH ailiiisnedtime shijgfftdoti ioAier'^inte iiktvbase ,ina-»x>ecii?6s>,9the'rpl«ce5Wlifereb4henEoriES9'W)ai« B«tog5c9»fl«aioa. niltfj-vsraisii'lmdeSr .direotions 6,iaaMfi)(gesifjitfeat ttei'fatii**ifoiii Whlehi'thfeo^Wgury ^l-estotii was .tliat^a& their- i's«rt'^Bffll5» or atSn't;! sul3«rviiseai fa'e'">plafcij^ of-the'. plat?'>& a^AMBgiSS-oas sjrtMsfonvi aUdlitBati'Tthefs-pSal* MfelB'^wte'Jr-'tfeiiSg) v^Mili 'n-iag,''at2thectimt», igythe3ii6r4i'»J tteJ^MeGsJCst'i Mw V.'Stt«f &8ftIci(P914|li©-i Kf;v/Bli*L8')!; »8«*fea'J%o-?» 0g?4ctbMH'tfl pfecterg'itlie HiimiiQ 4o da^eJoosi^asiao&ii W. WJcrM«»r ©Uir^^itSi. v: ''&Hd^&r}i.-^liTS,rm2p1 -'-'Ci oi> 183 BUILDBES AND COXTEACTOBS. 184 4. Negligence. 7. Sale of ruined huilding — Personal re- sponsibility of vendor.] — Where a ruined building is sold by A. to B., B. engaging himself to remove the materials from the ground, there is no responsibility imposed upon A., under the provisions of art. 1054 of the Civil Code of Lower Canada, in respect of injuries sustained in consequence of the negligence of B. in the removal of the ma- terials, as A. bad no control over the opera- tions of demolition and removal by B. and his workmen. — Judgment appealed from (Q. R. 17 K. B. 232), affirmed. DeKerangat v. Eastern Townships Bank, sli., 259. 5. Ship. 8. Material used in construction of ship — Sale of goods — Contract — Principal and agent — Misrepresentations — Mistake — Con- version — Travel — Evidence — Misdirection ^-Netv trial — Ship's husband — Pledging cre- dit of owners — Necessary outfitting at home port.] — While a three-masted schooner was in course of constructien, E. obtained goods on credit from the plaintiffs (appellants) falsely representing that his co-defendants were interested in the ship. The materials were built into the ship and used in rigging and equipping her, she was launched and registered in the name of E. as sole owner, and, subsequently, these co-defendants be- came bond, fide purchasers of certain shares in the ship, E. was registered as her man- aging owner, and she was sent to sea. — Held, that sending the ship to sea was not such a conversion of the materials worked into the ship as could support an action in trover against the subsequent purchasers of shares in her. — ^After the purchasers of the above mentioned shares were registered as co-owners, E. obtained, on a further credit, metal sheathing and otter goods from the plaintiffs which were used in sheathing and further outfitting the vessel, at the port where she had been built, and where the owners resided, before sending her out to sea. — Held, that the managing owner had power to pledge the credit of the owners for such necessary purposes. The " Huntsman " ((1894), P. D. 214), followed.— The judg- ment appealed from (32 N. B. Rep. 147), which ordered a new trial on the ground of misdirection, was affirmed. Troop v. Ever- ett, Cout. Cas. 131. 9. Jurisdiction of the E.vchequer Covrt of Canada — Claim under mortgage on ship — Action in rem — Pleading — Abatement of contract price — Defects in construction — Damages.] — In an action in rem by the builders of a ship to enforce a mortgage thereon, given to them on account of the contract price for its construction, the own- ers, for whom the ship was built, may plead as a defence pro tanto that the ship was not constructed according to specifications and claim an abatement of the price in con- sequence of such default and that the lo^s in value of the ship, at the time of delivery, attributable to such default, should be de- ducted from the claim under the mortgage. (Leave to appeal to Privy Council was granted by the Supreme Court of Canada ; see note to report, at p. 430). Boiv Mo- Lachlan and Co. 418. V. The " Camosun,'' xl., 6. Othee Cases. 10. Contract — Supply of material — Pay- ment — Certificate of engineer ■ — Condition precedent — Improper interference — Fraud — Hindering performance of condition ■ — Monthly estimate — Final decision. Temis- kaming d Northern Ont. Ry. Co. v. Wallace, 11. Railway aid — Provincial subsidy — Construction of statute — Breach of condi- tions — Compromise by Crown officers — Oblir gation binding on the Crown — Right of ac- tion — Subsidy to extension of line of rod- Kay. DeGalindea v. The King, xxxix., 682. 12. Contract — Inapplicable conditions — Action for quantum m,eruit. Toronto Hotel Co. V. Sloane, Cout. Oas. 356. 13. Vendor and purchaser — Misrepresen- tation — ■ Fraud — Error .■ — Rescission oj contract — Sale or exchange — Dation en paie- ment — Improvements on property gi/oen in exchange — Option of party aggrieved — Ac- tion to rescind — Actio quantum minoris — Latent defects — Damages — Warranty — Agreement in writing — Formal deed, xxxiv., 102. See CoNTRCT. 14. Driving logs — Damages — Acts com- mitted by jobber, xxxiv., 265. See Damages. 15. Negligence — Mining operations — Contract for special works ■ — Engagement by contractor — Control and direction of mine owner — Defective machinery — Notice — Failure to remedy defect — Liability for in- jury sustained by miner, xxxiv., 177. See Negligence. 16. Contract — Condition precedent — Right of action, xxxiv., 453. See CoiirTEACT. 17. Contract — Implied covenant — Dam- ages — New trial, xxxv., 186. See Conte'act. 18. Board of Railway Commissioners — Jurisdiction — Construction of subway — Apportionment of cost — Person interestei or affected — Street raihoay — Agreement tvith municipality, xxxvii., 354. See Board of Railway Commissioneks. 19. Mortgage — Money advanced to con- struct buildings — Lien for materials sup- plied — Payment to contractor — Trans- actions in fraud of rights of mortgagor- Redemption — Costs, xxxviii., 557. . See Mortgage. 20. Landlord and tenant — Negligence- Master and servant — Acts in course of e*' ployment — Alterations in plumbing — Dan- age by steam, etc. — Responsibility of eon- tractors — Control of premises — Cross-apptn between respondents — Practice, xxxix., 265. See Landlord and Tenant. 185 BY-LAW. 186 21. Breach of contract — Measure of dam- ages — Notice of special circumstances — Collateral enterprices — Loss of primary and secondary profits — Costs, xxxix., 575. See CONTKACT. 22. Set-off — Application to judgments — Eguitahle assignment — Practice, Cam. Cas., 99. See Set-off.. 23. Mechanics' lien — Construction of sta- tute — ■ "Alberta Mechanics' Lien Act"- — 6 Edw. VII., c. 21, ss. J/, 11 — Building erected by lessee — Liability of ", owner," xliv., 86. See Lien, 1. 24. Breach of contract — Action for quan- tum meruit — Rescission — Cross-action for damages — Appropriate relief — Waiver. FavreoM et al. v. Bochon, xlvi., 647. 25. Tramway company — Construction of works — Independent contractor — Dangerous system — Injury to property — Negligence — Exercise of statutory authority — Correlative duty — Damages — Special release, xlix., 430. See Negligence. 26. Negligence — Defective system — Injury to employee — Evidence — Verdict — Practice — Exception to judge's charge — New' points on appeal — New trial. Creveling v. Can. Bridge Co., li., 216. BUILDING. Construction — Collapse — Vis major, xxxlx., 1. See Negligence. BUILDING FUND, UPPEK CANADA. See Constitutional Law. BUILDING LOAN. Mortgage — Money advance to construct buildings — Lien for materials supplied — Payment to contractor — Transactions in fraud of mortgagee's rights — Redemption — Costs, xxxviii., 557. See Mortgage. BY-LAAV. 1. Municipal corporation — Water rates — Discrimination.'] — A by-law providing for special water rate from certain industries does not bring in question " the taking of an annual or other rent, customary or other duty or fee" under s. 1 (d) of the Act 60 & 61 Vict. ch. 34, [R. S. C. 1906, c. 149, s. 48 (d).]— By 24 Vict. c. 56, s. 3 (Can.) the city council of Hamilton was " empow- ered from time to time to establish by by- law a tariff of rents or rates for water sup- plied or ready to be supplied in the said city from the said water works." — Held, affirming the judgment of the Court of Ap- peal (12 Ont. L. R. 75) which sustained the verdict, at the trial (10 Ont. L. E. 280) that the rate for water supplied to any class of consumers must be an equal rate to all members of such class, and a by-law pro- viding for a rate on certain manufacturers higher than that to be paid by others was illegal. Attorney-General v. City of To- ronto (23 Can. S. C. R. 514) followed. Ciij/ of Hamilton v. Hamilton Distillery Co ■ 0%ty of Hamilton v. Hamilton Brewinn As- sociation, xxxviii., 239. And see Municipal Coepoeation. 2. Ulunicipal corporation — Powers— Land taa: sales— Purchase by corporation— Vesting or title — Manitoba Real Property Act — Agreement to re-convey— Necessity of by- law.}— Attev the City of Winnipeg had be- come purchaser of lands within the city sold for arrears of overdue taxes, and had obtained a certificate of title therefor un- der the Real Property Act, a resolution of t he city council was passed agreeing that the land should be re-conveyed to the for- mer owner on payment of the taxes in ar- rears with interest and costs.— Held., that the corporation was not bound by the reso- lution as the re-conveyance of the lands could be made only under the authority of a by-law as provided by the city charter. Waterous Engine Works Co. v. The Toicn of Palmerston (21 Can. g. C. R. 556) and DistriH of North Vancouver v. Tracy (34 Can. S C. R. 132) followed. Judgment appealed from (17 Man. R. 497) affirmed Ponton V. City of Winnipeg; xli., 18. 3. Contract by municipal corporaiion Powers — By-law or resolution— Right of action — Confession of judgment — Evi- dence—Admissions — Pleading — Estoppel by record — Art. 1245 C. C. —Concurrent mdmgs of fact— Practice on appeal, xxxiv., See Evidence. 4. Railway aid— Municipal by-law— Con- dition precedent — Part performance— An- nulment of by-law — Right of action^As- signment of obligation— Notice— Significa- tion upon debtor— Art. 1561 C. C, xxxvi ooo. " See Action. 5. Municipal Act— Vote on by-law— Local option— Ward divisions — Single- or multi- P'e^oting-R. S. O. (1897) c. 245, s. Ul —3 Edio. yil. c. 19, s. 355, xxxix., 236. See Statute. 6 Constitutional law — Legislative juris- diction— 'Early closing by-law " — Muni- cipal affairs — Property and civil rights- Local or private matters — Regulation of trade and commerce— B. N. A. Act 1887 » fQ;e:),^xiif.;ii.--«'^^'^^-^^>'^^ See Constitutional Law. 7 Benefi.t association — Life insurance — By-laws and regulations — Transfers hp S ^".^Bcs-Mem.ber in good starlding - Regularity of affiliation— Payment of dues m CAXADIAjSi,'3PAfiUJlC EAILWAY. w-MBiw-dm-T^m .a. .a .ino '^r, li^.i ti.16- .a .jS»«CIi8aVKisaJrflE?i:Iiiw).}ai£no'' eib Bfrub vac 03 bailqqijs leJyrn -lo'l 9j£-i sdJ Jfiifi .I):-'.- .iii'Zzz .)'onor.io« 9. s?l(watio»a(B® efcaiete'sW a^sa«fe4. -9d i'oii soqiniii''^ io YliO 9fll isJti— [••««! ■morm'i^^iihiidek^a^^ %1^iK^o%fAW§'5f ■siiirmiietii-tif sMate JpfSeJ.')'? 7"s;4a!f'¥'/F'g. ■^'orenSiiJjlB^"'-'*!'^'-'' ' " "'--..' BEW noDBToqioo -I'll: ■'d 3B , Wisl-7d a ess" W'^W -^ . riJ,'7/T.irfa" \- f •i^""- *^-" ■■^^" 5 ,, „E., .,3f^mc^^, gat^o mf iMi-rrr^l^^Ms-simete 'Charier " — Construction of statute, xl84-, See Municipal Coeporation, 2. I 14. Election i(?f(}xT7j'9^*?'3 — Municipa 'by-law — Scrutiny' — Power's of judge — In quirv into aualificatipn of voter — Dispcsi- 15. Municipal corporation — Potcers of ■Meel^sii^' afshyfiaw^'i'ttlisktfl^o'f con1>m^''^ ■Ri<}U,t:'mfYa'atidi!sv»-8(UtU9>V% piaiMfffttO^asi'^ ^i!ol4mAiio&t-i4oeJe'>VmKpmi^'ii^a1fefpds^P^ .igflS^M ^jhrifL-^-J^hKigi'fn>t&PSSt-^Pn-&!f6m^- «&«■ F* 'mieMeirt}&ievUi^^.P.M-ci'ioi=-i'AVi. 978 C. P. Q., Hi., 30. .IXS ,.iilz .(.siiQl SBCAjHOTfJKJmPMLTfSSSPisftATllfe. — 3J«. ,W&A Jftj®^Ui^'i yi-iBbiioi'iB fans See McHSIKHPKBOCto&OEATION. sent of ratepayers. TT. "Vancouver DistS'A. Ramsey, liii., .4'59C'-T38 ^'^S, a»d Municipal .!B,ow.iQ-^'i>der for annexa- tion, liv., 178. •\ot 5'0i!'.ij-6«0T J — iio'?f.n'«5VV — Si«-t9m raut .Ti^ ,.i7lz .!lOlV>o5i .7 .So U JlD'MJtj'i lO ilO,l50M"\' CAQASTBAI. PLANS. ^ — Evident, , „.. ia'fioii of ilser^—Long 'Me oy^iiUliUrc - gtdsitive pres6)'V0iM'-^Re^W,ls in deeds- »ce,— g^re- tf.ee JtliGiisvAy- -»^«»Siim9 oi .jii) -> .'/ ^n')Si»'j^'('J . .'lit -jjoY. — . insqqB no Refer^ences and notices —- Evideij " CANADA TE MPE RANCE ACT." 1. Canada Te^ ' Criminal ease t — Conviction — . c. 135, s. S2— ment on conj jstwjj jfe^- M^goffence Sgainst^ Part II. of tne Canada 'Temperance Act ig^ a commitment in a crim inal case under s.' 32 of K. S. C. c. 135 (R. S. C. 1906, c. 139, Court of Canada power to issue a writ of habeas p^ijpjps.TTjfeA^JsiVi.'^Ife'g- 41 (E. S. C. 1906, c. I52rs. I5t0 for a Wst offence against Part II. nf tlip. C an aria Temperance Act a fine may be imposed of " not less than $.50," an(J>fa-0iise(g(|5(j(i)f jijpaof " not less than .?100." — Held, Maclennan, J., dissent- *Jig(i*JW't l?r!i««.%Bt, <^m<5f. the ^^K^igmn- -^15)SJBM?S s3!>A9«Dsef-iB^0jj%iiliaii ^fefW •.!M>ItM6Wsi9»ni^"gi 4udgej.fgif5fl<,,-5r4^ 9S^^i|S¥ M-hich has jurisdiction ffe3ie,?aiTfti!4 diSfiffSS of it Idingtw^w^ii^^,^gnnan JJ., dis- sented, in re Ktcnard, xxxviu., 394. 2. Criminal law — Summary convictimi and orders — P^^^^j^S-;^ magistrate — De- lay in issuing commiiriient — Term of impris- ■M?^a*iivoia wELr-^d A -^ r.noiSommmeid ^i■■m^ubai MhM^'SSAf Qm^HiiB^ Imsqi io saidBj AiStB" sBaiSijQpoBi ^tv9. ioa ssob •isdio '10 vifimoJaiJo .sas'i isdjo to lisunns db 00 JsA ■?({: 5o li) X .g -i sbnu " sei io ^lul) ,etX .o ,8061 .0 .8 .H] .tS .do .joiV 18 i (.GjANJKiJi^ar .p.SflegfHEDy.aaAn^ay^,! -wofjras '• 3Bv; noJlirafiH 5o ibouoo jJio sd) -v,dl.-(;ca.sfe}«l!«aa6t o8ndinl9a'0:(»«> «f ■ Mini?) HeW- #5*/»Ac?«!tif . ■^ 4ri3^?aje(?ps^d«^§C«6fo ^SfflHrj 3tfeil Jon ob ■.".m'loi 9<9«erICUiN/S'ii(riija'ittN^L9iilABaiI)siia-i)a -..fa eilklfaf'Se^'EJyskS' ^Wm^Ei&ik. a&'io-ff ' OilClt»0 -JJ «3!bl\ l.ji .V «0%l(i .8lni!bxi9T .iJ8 .8eO .mB O , (>0~ ,.iiiTz) .0'^ .'io'L 1-4 , jii guii'"^^""! W" "»-' i^^iuJtfS'Bfr 9''J 'to 1: riT/ob 3*?H>ffS«fttfrBB.pffO;i.4gi}l,-,ifj gfaca ijni; -lEo ■i93U933j';fi 9ri} ilJivr bsbilloo .gbfi-ia -rii3a WiPJ3B*to ?»v/r8^tfi-fl<41"SfBl»tB4MW9iit fe»"f;«ie«(— ifctd(?afOm gftWWM.]*trffhfti<5- FsilBs}- ■Cio.)i»a'fi)l(jedj3fo6nJiterty/r*o imU %9i©to 9R8fttbfl£D,t«^al6«ftqajji«\agabl^oriv#r;-,gfl^f'- ^rtliYfigaiOSnJd^cSjnudifj-ja^F^^Wy-iaAiiicQr^St 48 mamJA Wi%9Ba^8e4 BBJ5i*di»ffl tjjftt ^'stJlf g'urttMBiq 9dj. ie ^kA mimstmct.mtbeRoS- *WMM-/!4i the toidg«f)BOTi?)jiarQi*9§tioiisrh. o^jco ow 9«tyJBSbbiridi;e§ri4Y«r ,5tbBl SfinifiroP^sAfi^ ■QfljnaJnjtT^rifeiFaJlsSJ CfeaatliiliR9ij»}ii§5 §WfeEtfiMi *l*4-rJS9rjternritb? iinv/ttesifiP8«SI6iop,99n9|ti^«Jl lJ|«B-ifffrfiiMs()!4 ■(dte anferatisBa ajad j^ajfit^uaaflf t^o^^fi^f-iiijig «»dMgl Iff J)tienoW«9p»rfJ Qwl»dim BumS^ My. iQobSif^hs -SbijQlcpBsvBto ajtlw jiiB7-i9a -Io3 nJ 9-I9V? rioiriw saieil 9riJ io aoilB'isqo 9Da5)b®»(?i«(tOfl89»fci im'hi—Mliieiitm'errdhSr . -tliBSbeobeoiitr afy/Vi^d CfhdQoiMdBin-^mQiisi^ Mimht %b31&«9Q8«&««»f QfeM.7/C6S8Btilb bnn ■I970991 oJ bsbiiaa ZR-n SWnijsIq 9dJ .'jlilidisil -qj^.jdkogfeirt — 'Waie^pawsKfKdmw^tfU'SikU Compem3BiitJl^¥»iai--iMoenweviTWH^sure of damages — Loss of profits, xxxvii., 259. — ■i3en'3v,80ii \o ;Se#iEB'AbE7- aunii^ioS^ •- -■iiiq ,.iiiO ,iio3-i97UTT. fn '..'I — [.HtiVionU a7ro} TjilJouji ni i rBni ]■■ - loi 93'xod r, bsHcd'i b9ii3i3 .I .Ji io 9S-ii;il-j jiBJ 0) .K 3;i9g 01(7/ 9dl 7d b970'iqqr; m-iol yd} a; IIid--CB7/ sdJ ri9id7> ,3'i9no£43iAiPfI"A.TIo 9d] ii )jid) stiil;i70'iq oarjBlo n bouiBlnoo o}%>oBeUm:(itioMinilJ«et«;e9-i-»+ ■IMnmiyr iaUimib^fip'i^omv.tor-vMniiidiiletiSt fret pxteeMatioBiBfftMttideKcet'uvf^iDgiim jfiSf IjpEoo/t KXxS3ib)[d6Qid-7B7f 9ri; iisia 'jJ badsj; Jo:i 9-iijJBnsi3 gid iiiSe* Wh/LiJ bga-iobni mioi 9dT .Ji ninJdo u) 111931; 9d} bs'riup'vi bim ni2li WAUti^'I\BitamjSbtatyiiviBi[^B3Jtyi—iBigffeii- Mnideneea^^iismi ofi J)ini)oj;(iiKli.v' 39llySBagBq Jon isin .JI JndJ M^\^ifjjginn7-j93 3'iUBqmo> -ii)ii09 bguicjnoo lIid-7./r/7 gdJ jBdJ 'siiun; '-imiM'Lmmm-i-Mmik -WM- JnO iH) iGgqqV- JO mil> J 9Tfj 10 JngtnsbuT. iBiiJ 9dJ id liRdiH'iuW]Wv,i-n (OGi .a .J -iSott. .b9ioj39i (Tat .JI .J .JnO 92) asbui; ,.ii7lz ,.oO vv)HVi»fl~"SjnnT SinoiQ .7 Jio'jui CARRIERS. 1. Bins OF L^BjjSfcjiXD .; Shipping Re- ceipts, 1. ai"G![QH>m«ONSMAO'A\l!»'«> W noi^ irlj^SP^.aSntM^fo ViJr-^sTio') to ^iUMoVi— B .9on93il39n aaoig io99U9bi79 io 99ii98dB b'jiiinJang agi'iutni -lol eldfiil Jon 31 -igi-riBO -T^«a .7 S\n'fto\t .■I93n933.';q 'aiioiiuliyrj a vd tVdn'^l^iS-rmii^A^mS ^pcgHlBeilCSjEi&m -nijgil) (GI2 .a .^Qfif^IJ .oO j, y-ii^'S. .7 •Cem '.raBgrnoo ijB7?IiBi B danodJiA — .bsdsins ■riHi-idBUissifialAiim^ttSiqa^aMe imta^-^l^ •mwii& '»6fiiiidm§--&iEife\mtimaikomM(>Miit& fiiiihmt}^mbsUvmikdim'a&!ih^iWiU9vom&r §9»9flll38nP«8t)'iiji Ji»lacfo}tiii9»Msin«jEnSsa$9 teSBlflJ8*sIiBipB6^oliimc4ii4>|yiiefflp^ei);-iJfeeoc)si ^$srffe6»6i rj(Bifii.r5l?;bg bilUef igid4Bg9?W ft* taSftgS59«5 St..a3"(rtl)nrd)ravl<3*id9(ftl3[*tj((ljft,|!l;Bte .wSJil^ioblSoSelweifejl .-thS?^,ii*i\|& lib§nia«?i order and condition as when rece|eed.v^i^ ject to exceBt»fi^fiIafflfl ^puJjstlons including injury from " effects of climate " or from "(wujiSs^t-iiHftltfaiT \jifi!««(}S tUe-ifli^teiesi-wsfl ■di:^b@«rgSl"otlier'a8fgCfe'»ft4oetter-js:hjle,^ Halifax [QP)teftwftiariftl^«g'rai-SlS«<»lrfil^'VJlie ^BdIJo cmiistm^a/t ■«r-ftS[ciErj9«n.fTTiSieMraiSS- ■flteraloe itite i5)ldgiii*Brtj9%Bffiate(jjSipe-n^(i(!3i-iS- ■aa Bi9(a9a25!ii tWtiiibir-.i^nx/^utfinil^S liBB*): HSiaseeilufivtaiqtlfeisfffjctstia^J: clipiajliCixaiMl tiif terwsoof sMiftfJiil-^fiiljHliSig •JltJie??(*dgtl»I.slf}15h «ftnjj!S}f(giltodli8hiJity9-j^r§ferigvgiti-i^o«gli Stecrb'joajr to«9fi«Kn9gl»to efo«iif«lksafif9Tn- 5§besfl*ii^ga*P OOff icttenJgvRJBB M» "adsijW! 4!«9ngJa:9S(5t}cwi9dlg8ta8t9ibi>3i<>arj-Ji3r9,jdli{»lii* ■fJeiiBBiniiilJBrtneK^jttittesb tli[j§ili3Sfti^j6h :JriRi JtoiS»roi^s8ge]tl^nt-rBBs69tial}jnoTr aH«i 9 Edw. TIL c. 32, 1, xlv., 346. See Railways. 9. Practice — Action by dependents — B. C. " Families Compensation Act " — Release by deceased — rDefence to action ■ — Repudiation — Fraud — Setting aside release — ■ Personal representative — Right of action — Return of money paid — Limitation of actions ■ — Gen- eral statutory provision — Carriers — Private Act — B. C. " Consolidated Railway Com- pany's Act" — Statute— R. S. B. C. 1911, c. 82— "Lord Campbell's Act"—(B. C.) 59 Y. c, 55, s. 60, xlix., 470. See Pbactioe and Procedube. 10. Railways ■ — Shipping contract — Carrying person in charge of live stock — Free pass — Release from liability — Ap- proved form — Negligence — Action by de- pendents — ■ Conflict of laws — " Railway Act," R. S. C. 1906, c. 37, s. 340. C. P. R. V. Parent, li., 234. See Railways, 4. And see Railways. 11. Guarantee by bank — Sale of goods — Payment of draft — Bill of lading — Goods at disposal of consignor. Pioneer Bank v. Bank of Commerce, liii., 570. 12. Railways — Shipping. Tipond v. Fur- ness. Withy & Co., liv., 521. CASES. Appealed to Privy Council. See Appendix •' A." CAUSE. See Action. CERTIORARI. 1. Construction of statute — "Marsh Act," R. S. N. S. 1900, c. 66, ss. 23, 66— Jurisdic- tion of marsh commissioners — Assessment of lands — Limitation for granting writ — Prac- tice — Expiration of time — Delays occasioned by judge — Legal maxim — Order nunc pro tunc.} — ^Where a statute authorizing com- missioners to assess lands provided that no writ of certiorari to review the assessment should be granted after the expiration of six months from the initiation of the commis- sioners' proceedings. — Held, Girouard, J., dissenting, that an order for the issue of a writ of certiorari made after the expiration of the prescribed time was void, notwith- standing that it was applied for and judg- ment on the application reserved before the time had expired. — Held, per Taschereau, C.J. — That where jurisdiction has been taken away by statute the maxim actus curice neminem gravabit cannot be applied, after the expiration of flie time prescribed, so as to validate an order either by ante- dating or entering it nunc pro tunc; that, in the present case, the order for certiorari could issue as the impeachment of the pro- ceedings of the inferior tribunal was sought upon the ground of want of jurisdiction in the commissioners, but the appellants were not entitled to it on the merits. — Per Girou- ard, J. (dissenting). — Under the circum- stances, the order in this case ought to be treated as having been made upon the date when judgment upon the application was re- served by the judge. Upon the merits, the appeal should be allowed as the commis- sioners had no jurisdiction in the absence of proper notices as required by the twenty- second section of the " Marsh Act," R. S X. S. 1900, c. 66.— Per Davies, J.— The sta- tute allows any person aggrieved by the pro- ceedings of the commissioners to remove the same into the Supreme Court by certiorari; the claim for the writ on the ground of jur- isdiction was either abandoned or un- founded ; and the statutory writ could not issue after the six months had expired. In re Trecothic Marsh, xxxvii., 79. 2. Habeas corpus — Jurisdiction of judges of Supreme Court of Canada — Reviewing 195 CHAMPERTY. 196 evidence — Construction of statute — 29 d 30 Vict. c. 45 (Can.)~-R. 8. G. c. 135, ss. 32, 36. In re Arabin alias Ireda, Cout. Cas. 95. 3. Criminal late — Habeas corpus — Convic- tion — Keeping house of " ill-fame " — Review- ing evidence — Construction of statute, Cout. Cas. 35. See Habeas Corpus. CHAMPERTY. 1. Conveyance of land — Description of pro- perty sold — Partition — Petitory action — " Quebec Act, 1114 " — Introduction of Eng- lish criminal law — Champerty — Mainten- ance — Affinity and consanguinity — Parties interested in litigation — Litigious rights — ■ Pacte dc quota litis — Contract — Illegal con- sideration — Specific performance — Retrait successoral.} — ^The heirs of M. induced sev- eral persons related to them either by con- sanguinity or by affinity to assist them as plaintiffs in the prosecution of a lawsuit for the recovery of lands belonging to the suc- cession of an ancestor and, in consideration of the necessary funds to be furnished by these persons, six of the respondents and the mis en cause, entered into the agreement sued on by which said plaintiffs conveyed to each of the seven persons giving the as- sistance one-tenth of whatever mifeht be re- covered should they be successful in the law- suit. In an action au petitoire et en part- age, by the parties who furnished such funds, for specific performance of this agreement : — Held, reversing the judgment appealed from (Q. R. 12 K. B. 298), Davies, J., dis- senting, that the agreement could not be enforced as it was tainted with champerty notwithstanding that the consanguinity or affinity of the persons in whose favour the conveyance had been made might have en- titled them to maintain the suit without remuneration as the price of the assistance. — Held, further, that the laws relating to champerty were introduced into Lower Can- ada by the " Quebec Act, 1774," as part of the criminal law of England and as a law of public order the principles of which and the reasons for which apply as well to the Province of Quebec as to England and the other provinces of the Dominion of Canada. Price v. Mercier (18 Can. S. C. R. 303), re- ferred to. [Leave to appeal to the Privy Council refused.] Meloche v. Deguire, xxxlv., 24. And see Title to Land. 2. Title to land — Champertous agreement — Litigious rights.] — In Briggs v. Newswan- der (32 Can. S. C. R. 405), the plaintiff was held entitled to a conveyance from defend- ants of a quarter interest in certain mineral claims. In that action, Newswander et al., were only nominal defendants, the real in- terest in the claims being F. After the judgment was given plaintiff conveyed nine- tentbs of his interest to G., the expressed consideration being moneys advanced and an undertalsing by G. to pay the costs of that action and another brought by Briggs and, by a subsequent deed, which recited the proceedings in the action and the deed of the nine-tenths, he conveyed to G. the remaining one-tenth of his in- terest, the consideration of that deed being $500 payable by instalments. Briggs afterwards assigned the above-mentioned judgment and his interest in the claims to P. In an action by G. against F. for a declaration that he was entitled to the quarter interest : — Held, affirming the judgment appealed from (10 B. C. Rep. 309), that the transfer to G. of the nine- tenths was champertous and the court would not interfere to assist one claiming under a title so acquired. — Held, also, that the trans- fer of one-tenth was valid, being for good consideration and severable from the re- mainder of the interest. Oiegerich v. Fleutot XXXV., 327. 3. Maintenance — Malicious motive — Came of action — Costs of unsuccessful defence — Damages.] — A defendant against whom a lawsuit has been successfully prosecuted can- not recover the costs incurred for his de- fence as damages for the unlawful main- tenance of the suit by a third party who has not thereby been guilty of maliciously pro- secuting unnecessary litigation. Bradlaugh v. Newdegate (11 Q. B. D. 1), distinguished; Giegerich v. Flutot (35 Can. S. C. R. 327) referred to. Judgment appealed from (12 B. C. Rep. 272), affirmed. Newswander v. Oiegerich, xxxix., 354. 4. Administration proceedings — Statute of Limitations — Champertous agreement — Practice.'] — O., a creditor against the estate of A. M. C, a deceased intestate, obtained an order for the administration of the estate of the intestate. On the proceedings in the master's office, a claim which 0. made to have an account of the firm of which he was a member allowed was refused, but a fur- ther claim presented by him as the assignee of certain promissory notes made in favour of H. & Co. was allowed. The present ap- pellant, wife of the intestate, presented a petition to the court to set aside the admin- istration order on the ground that 0. at the time the order was made was not a cre- ditor of the deceased intestate, as the as- signment of the notes of H. & Co. to him was part of a champertous agreement. The court held that the judgment for adminis- tration enured to the benefit of all the cre- ditors, and, as one at least had established a claim under it, the order could not be set aside, but that O. was not entitled to be allowed in the master's office his claim oo the notes, as the transaction between him and PI. & Co. in connection therewith was a champertous one. O. retransferred the notes to PI. & Co., and the latter obtained leave to prove the claim thereon in the master's office, and on appeal from the mas- ter's ruling, it was held that H. & Co. might now assert their title to the notes and prove on them notwithstanding the former cham- pertous agreement with O., and that the or- der for administration was a bar to the Statute of Limitations running against tte notes from the date of the order. Upon ap- peal this judgment was affirmed by the Court of Appeal. — Held, that the judgment of the Court of Appeal should be affirmed and the appeal dismissed with, costs. — Held, V^' (j Wynne, J., that the maker of an unques- tionably valid note could not in proceedings taken by the payee to recover upon the note institute an inquiry as to wEat the piy* 197 CHATTEL MOETGAGE. 198 may have done with the note in the interval elapsing between the making of the note and the proceedings taken to recover pay- ment of it, and that the transaction between O. and H. & Co. was not champevtous. Cannon v. Ilowland & Co. (Gout. Dig. 234) ; Cam. Cas. 119. 5. Title to land — Conveyance upon condi- tions — Public park — Trust — Forfeiture — Assignment of interest — Decree in favour nf assignee — Champertous agreement, xxxv., 121. See Title to Land. 6. Solicitor and client — Costs — Con- fession of judgment — Agreement with coun- sel — Overcharge, xxxv., 168. See SOLICITOK. CHARTERED SHIP. Shipping — Stiitahility for cargo — Duty of ou-ner — Dead freight — Demurrage, liii., 471. See Ships. CHARTER PARTY. 1. Shipping — Condition to load and pro- ceed with dispatch — Delay — Loss of cargo — Recovery of freight — Action. Spindler v. Farquhar, Cout. Cas. 364. 2. Shipping — Time for loading limited iy charter party — Loading at port — Custom — Obligation of charterer, xxxiv., 578. See Ships and Shipping. 3. Shipping — Material men — Supplies fur- nished for " last voyage " — Privilege of der- nier equipeur — Round voyage — Personal debts of hirers — Seizure of ship — Arts. 2S8S, 2391 C. C.—Art. 931 G. P. Q.— Construction of statute — Ordonnances de la Marine, 1681, xl., 45. See Ships and Shipping. 4. Marine insurance — Loss of freight — De- tention by ice — Perils insured against. Cam. Cas. 86. See Insueance, Marine. CHATTEL. Mining lease — Prospector's license — Testing machinery — Annexation to freehold — Trade fixtures — Fi. fa. de bonis — Sale un- der execution.] — ^The licensees of a mining area in Nova Scotia erected a stamp mill on wild lands of the Crown for the purpose of testing ores. All the various parts of the mill were placed in position, either resting l)y their own weight on the soil or steadied by bolts, and the whole installation could be removed without injury to the freehold. — Held, that the mill was a chattel or, at any rate, a trade fixture removable by the licen- sees during the tenure of their lease or license and, consequently, it was subject to seizure and sale under an execution against goods. Judgment appealed from (36 N. S. Rep. 395) affirmed, but for different rea- sons. Leave to appeal to the Privy Council refiised; May, 1905. Liscombe Falls Gold Mining Co. v. Bishop, xxxv., 539. And see Movables. CHATTEL MORTGAGE. 1. Preferences, 1-2. 2. Registration, 3-4. 3. Other Cases, 5-10. 1. Preferences. 1. Interpleader issue — Chattel mortgage- Hire receipt - Vict. c. 26. s. 2 (Ont.) — 13 Eliz. c. J — Clarkson v. Sterling (15 A. R. 2.ilf), distinguished.] — B. sells to P. on time, a quantity of machinery, and the agreement of sale contains a provision by which P. agrees to give B. a hire receipt or a chattel mortgage as security. A few days after L. had brought an action against P. for the price of goods sold and delivered, P. gives B. a chattel mortgage.^ — Held, that the mortgage in question was given with in- tent to delay, hinder and defraud creditors, and was void. — Held, per Taschereau, J., approving the judgment of Hagarty, C.J.O., that the equitable doctrine under which the mortgage was upheld in Clarkson v. Sterling (15 Ont. App. R. 234), did not apply, first, because there was no absolute contract to give a chattel mortgage — the contract was alternative, either a hire receipt, or a chat- tel mortgage ; — and, secondly, the mortgage given was not that contracted for but in- cluded additional goods. Brown v. Lamon- tagnc, Cam. Cas. 30. 2. Assignments and preferences — Hinder- ing and delaying creditors — Assignment of book debts — Surety.] — The Ontario Seed Co. owed a bank some $8,000 for which J. was surety by bond and indorsement of notes for all but $500. The bank also held as further security an assignment of the company's book debts. The company gave to A., a brother of J., a chattel mortgage of all its personal property and agreed to as- sign to him the book debts. A. then gave to the company an amount sufficient to pay the bank's claim, J. having supplied him with funds for the purpose, and the com- pany gave its own cheque to the bank with a direction to assign the book debts to A., which was done. — Held, that the evidence justified the finding at the trial that the chattel mortgage was given for the benefit of J., who was aware at the time it wa.s given that the company was insolvent, and that it was void under the provisions of the "Assignments and Preferences Act '' and should be set aside. — After the assignment of the book debts to A. the company was allowed to go on collecting them. — Held. that such assignment was valid, but that the assignee could not retain the value of what had been collected out of the proceeds of the property covered by the chattel mort- gage. — Judgment of the Court of Appeal (24 Ont. L. R. 503) reversed and that of the Divisional Court (22 Ont. L. R. 577) 199 CHATTEL MOETGAGE. 200 restored. Stetcher Lithographic Co. v. On- tario Seed Co., xlvi., 540^ 2. Registration. 3. Chattel mortgage — Renewal — Time for filing — Identification of goods — Sufficiency of description — Proof of judgment and exe- cution.] — The ordinance of the North-West Territories relating to chattel mortgages (Ordinance of 1881, No. 5), provides by s. 9 that " every mortgage filed in pursuance of this ordinance shall cease to be valid as against the creditors of the persons making the same after the expiration of one year from the filing thereof, unless a statement, etc., is again filed within thirty days next preceding the expiration of the said term of one year." A chattel mortgage was filed on 12th August, 1886, and registered at 4.10 p.m. of that day. A renewal of said mort- gage was registered at 11.49 a.m. on 12th August, 1887. — Held, affirming the decision of the court below, that the renewal was filed within one year from the date of the filing of the original mortgage as provided by the ordinance. — Per Patterson, J. — In computing the time mentioned in this sec- tion the day of the original filing should be excluded and the mortgagee would have had the whole of the 12th August, 1887, for fil- ing the renewal. — Section 6 of the same or- dinance provides that : "All the instru- ments mentioned in this ordinance whether for the mortgage or sale of goods and chat- tels shall contain such sufiicient and full description thereof that the same may be readily and easily known and distinguished." The description in a chattel mortgage was as follows: "All and singular the goods, chattels, stock-in-trade, fixtures and store buildings of the mortgagors, used in or per- taining to their business as general mer- chants, said stock-in-trade consisting of a full stock of general merchandise now being in the store of said mortgagors on the north half of section six, township nineteen, range twenty-ieight, west of the fourth initial meridian." — Held, affirming the decision of the court below (1 Terr. L. R. 159), that the description was sufficient. McCaul v. Wolf (13 Can. S. C. R. 130), distinguished. Hovey v. Whiting (14 Can. S. C. R. 515), followed. — Per Patterson, J., that although the interpleader issue did not contain an express statement that the judgment and execution on which the goods were seized were against the makers of the chattel mort- gage, that fact should be inferred. Thomp- son, Codville & Go. V. Quirk (xviii., 695) ; Cam. Cas. 436. 4. Chattel mortgage — Registration — Siih- sequent purchase — Removal of goods.] — For purposes of registration of deeds the North-West Territories is divided into dis- tricts, and it is provided by ordinance that registration of a chattel mortgage not fol- lowed by transfer of possession, shall only have effect in the district in which it is made. It is also provided that if the mort- gaged goods are removed into another dis- trict, a certified copy of the mortgage shall be filed in the registry office thereof within three weeks from the time of removal, other- wise the mortgage shall be null and void as against subsequent purchasers, etc. Held, reversing the judgment in appeal, that the " subsequent purchaser " in such case must be one who purchased after the expiration of the three weeks from time of removal, and that though no copy of the mortgage is filed as provided it is valid as against a purchase made within such period. Hullert V. Peterson, xxxvi., 324. 3. Othee Cases. 5. Contract — Guarantee ■ — ■ Conditional sale — Rescission — Mortgagor and mortgagee — Power of sale — Creditor retaking posses- sion — Continuing liability — Appropriation of money realized hy creditor — Release of debtor — Discharge of surety.] — S. leased a hotel for three years and agreed to purchase the furniture therein from plaintiffs (re- spondents) at $11,000, payable by instal- ments, $3,000 during the first year, $3,000 during the second year, and $5,000 during the third year of the term, power to' retake and sell the goods, on default, being re- served. The whole debt was secured by chattel mortgage upon the furniture, and, as further security, by an agreement entered into with several other persons, the defend- ant (appellant), guaranteed the payment of one-sixth of the instalment payable during the second year of the term. It was a con- dition of the guarantee that it should re- main in force notwithstanding that S. might forfeit her right to the furniture under the conditions of any agreement or mortgage. The chattel mortgage, on breach of cove- nants, provided for forfeiture of all claim ot S. to the furniture, and that the plaintiffs might, thereupon, retake possession thereof, and, also, that all payments she shouM have made would then be forfeited. During the second year of the term, on default by S. to pay part of the first year's instalment, the plaintiffs resumed possession of the hotel and furniture, leased the hotel to another person and sold the furniture for $6,500; they also notified the guarantors of the de- fault of S. to perform " the conditions of the purchase," that they had. In conse- quence, repossessed themselves of the furni- ture, and that they intended holding the guarantors liable for the payment guaran- teed. The money received on the resale was appropriated by the plaintiffs, first, in pay- ment of a balance of the first year's instal- ment ; 2ndly, in payment of the third instal- ment, and lastly, towards part payment of the second instalment, thus reducing this last amount by $105.14. After the expira- tion of the three years' term of the lease to S., the plaintiffs sued upon the guarantee, and recovered judgment against the defend- ant. — Held, per 'Taschereau, Girouard and Davies. J,I. (Sedgewiek and Mills, JJ-, contra) , that the contract represented by the agreement, guarantee and chattel mort- gage constituted a relationship of mort- gagor and mortgagee between S. and the plaintiffs, and, consequently, that the guar- antors continued to be liable under the guarantee, notwithstanding the forfeiture of the rights of S., and the exercise of the powers of resuming possession and re-sal« 201 CHEQUE. )i02 of the furniture. — Held, per Sedgewick and Mills, JJ., dissenting, that the transaction amounted to a conditional sale of the fur- niture, that the liability of S. upon her per- sonal covenant ceased upon the exercise of the powers by the plaintiffs, and, conse- quently, that the sureties were discharged, notwithstanding the special provision that the guarantee should remain in force. • — • Held, also, per Sedgewick and Mills, JJ. (Davies, J., contra), that, in either view of the nature of the contract, the receipt of the money on re-sale of the furniture cancelled the debt pro tanto, and, upon the second instalment falling due, the plaintiffs were bound forthwith to appropriate the amount of that instalment out of the $6,500 then in their hands, in satisfaction and discharge of the guaranteed payment, thereby releas- ing both S. and her sureties from further liability. Stephen v. Black et at, Cout. Cas. 217. 6. Construction of statute — N.-W. Ter. Con. Ord. 1898, c. 5'f — Extra-judicial sei- zures — Chattel mortgage — Sale through bailiff — Excessive costs — Penalty — Waiver —The " Bank Act," R. S. C. 1906, c. 29, s. 91 — Interest — Contract — Excessive charges Settlement of account stated ■ — Voluntary payment — Surcharging and falsifying — Re- duction of rate — Removal of mortgaged property — Negligence — Measure of dam- ages.] — The parties to a chattel mortgage may waive the provisions of the third sec- tion of the North-West Territories Ordin- ance, 1898, ch. 34, in respect to the expenses of the seizure and sale of the mortgaged property. Roison v. Biggar ((1907) 1 K. B. 690), followed. Judgment appealed from (3 Alta. L. E. 166) reversed. — Where in- terest in excess of the rate of spven per cent, per annum has been voluntarily paid upon the settlement of accounts stated be- tween a bank and its debtor, the amount so paid cannot be recovered back from the bank by the payer. In respect of unsettled accounts between a bank and its debtor, charges of interest in excess of the rate limited by section 91 of the " Bank Act," R. S. C. 1906, ch. 29, made in virtue of an agreement between the parties, should be reduced to the rate of seven per cent, per annum upon the surcharging and falsifying of such accounts. Judgment appealed from (3 Alta. L. R. 166) affirmed, Idington, J., dissenting. — Where loss occurs to mortgaged property in consequence of want of reason- able care in its removal from the place of seizure to the place at which it is sold under the authority of a chattel mortgage, the pro- per measure of the damages recoverable by the mortgagor is the amount of depreciation in value caused by the negligent manner in which the removal was effected. In the pres- ent case, the evidence being insufficient to justify the assessment made by the trial judge, it was referred back to have the dam- ages properly assessed. Judgment appealed from (3 Alta. L. R. 166) varied. Duff and Anglin, JJ., dissenting. Union Bank of Can- ada V. McEugh, xliv., 473. 7. Sale under powers — Notice — Offer to re- deem — Tender — Equitable relief — Evidence —Proceedings taken in good faith.] — To impeach a sale under powers in a chattel mortgage on the ground that an offer. jto. redeem was made prior to the time fixed by the notice of sale, the person entitled to re- deem is obliged to shew that the amount due under the mortgage was actually ten- dered or that the mortgagee was distinctly informed that the mortgagor was then and there ready and willing to pay what was so due and, being thus informed of the inten- tion to redeem, refused to accept payment. — In the exercise of his power of sale, a mortgagee of chattels is bound merely to act in good faith and avoid conducting the sale proceedings in a recklessly improvident manner calculated to result in sacrifice of the goods. — ^And per Duff, J., he is not obliged (regardless of his own interests as mortgagee) to take all the measures a pru- dent man might be expected to take in seUing his own property. — Judgment appealed from reversed, the Chief Justice and Idington, J., dissenting. British Columbia Land and Investment Agency v. Ishitaka, xlv., 302. 8. Fraudulent conveyance ■ — Pleading • — Practice — Approbating and reprobating transaction — Right to redeem — Oral evi- dence to vary deed — Sheriff's sale — Equity of redemption — Execution, Cam. Cas. 251. See PlEADING. And see Bills of Sale. 9. Fire insurance — Insurance on lumber — Conditions — Warranty — Railway on lot — - Security to bank, xlvii., 216. See Insubancb, Fire. 10. Bill of sale — Mortgage — Registration — Affidavit — Verification — B. C. " Bills of Sale Act," 5 Edw. VII. c. 8, s. 7, xlix., 541. See Bills of Sale. CHEQUE. 1. Crown — Banks and banking — Forged cheques — Payment — Representation by drawee — Implied guarantee- — Estoppel — Acknowledgment of bank statements — Lia- bility of indorsers — Mistake - — Action — Money had and received, xxxviii., 258. See Bakks and Banking. 2. Insolvency — Preferential transfer of cheque — Deposit in private bank — Applica- tion of funds to debt due banker — Sinister intention — Payment to creditor — R. S. 0. (189'7) c. U7, s. 3 (1), xxxix., 281. See Assignments. 3. Banks and banking — Forged cheque — Negligence — Responsibility of drawee — Pay- ment — Mistake — Indorsement — Implied warranty — Principal and agent — Action — Money had and received — Change in posi- tion—Laches, xL, 366. See Banks and Banking. 4. Partnership — Principal and agent — Partnership funds — Third party — Banks and banking — Negotiable instrument — No- tice — Inquiry, xlv., 127. See Partnership.- And sea., Bills and Xotes. 203 COLLOCATION. 204 CHINESE. Constitutional law — Criminal law — Legis- lation respecting orientals — Chinese places of business — Employment of white females — Statute— 2 Geo. V. c. 17—{Sask.) — ' B. N. A. Act, 1867," ss. 91, 92 — Local and pri- vate matters — Property and civil rights — 'Naturalized British subject — Conviction under provincial statute, xlix., 440. See Constitutional Law. CHOSE IN ACTION. 1. Assignment of chose in action — Notice — Statute of Limitations — Achnowledgment of deit — Interest, Cam. Cas. 239. See Limitation or Actions. 2. Banking — Security for advances — As- signment — Moneys to arise out of contract — Unearned funds — Equitable assignment to third party — Notice — Evidence — Priority of claim — Estoppel — Construction of statute — Manitoba " King's Bench Act " — " Bank Act," xlvii., 31. See Banking, 2. CHURCH. Title to land — Ambiguous description of grantee — " Greek Catholic Church " — Evi- dence — Construction of deed — Reversal of concurrent findings, xxxvii., 177. See Title to Land. CIVIL SERVICE. Constitutional law — Municipal taxation ■ — OMciail of Dominion Government — Taxa- tion on income — B. N. A. Act, 1867, ss. 91, 92, xl., 597. See Constitutional Law. CLEARING HOUSE. Broker — Dealings " on change — Specu- lative options — Priivcipal and agent — Lia- bility for contracts by agent in his own name — Privity of contract — Purchase and sales on " margin " — Settlements through clean-ing house — Wagering contract — Malum prohibitum — Criminal Code, sec. 237, xlix 595. See Bkokee. COLLISIONS AT SEA. 1. Admiralty law — Navigation of canal — " Narrow channel " — 3Iarine Department Regulations, rule 25 — Starboard course — Fairways and mid-channels — " Canada Shipping Act," R. S. C. 1906, c. 113, s. 916 — Shipping — Liability for damages — Canal Regulations, rule 22 — Right of way.'\ — The steamboat " Honoreva " was under way go- ing up the Soulanges Canal and approach- ing a bridge across the channel which was swung open when she was about 300 feet below it. The steam tug " Jackman " was then observed descending the canal, with the current, at a greater distance above the bridge and also under way. The " Hon- oreva," in attempting to pass first through the abutments of the bridge (a space of about 100 feet in width), and keeping a course in mid-channel, came into collision with the barge " Maggie," which was being towed by the " Jackman," and the barge was injured and sunk. In an action for dam- ages against the " Honoreva " she counter- claimed for damages sustained by her owing,, as alleged, to the negligent navigation of the tug-and-tow. — Held, that the vessels thus navigating the canal were, at the place where the collision occurred, in a " narrow channel " ; that article 25 of the rules of the Marine Department respecting the pas- sage of vessels, which requires them when safe and practicable to keep to the star- board in fairways and mid-channels, applied to the navigation of the vessels in question, and that the " Honoreva," having failed to ' obey that rule, was in fault within the meaning of section 916 of the '" Canada Shipping Act," R. S. C. 1906, ch. 118; that there was no negligence proven on the part of the tug-and-tow, and that the "Hon- oreva " was, therefore, solely liable for the damages resulting from the collision. — Per Davies and Anglin, JJ. — Under sub-section b of article 25 of the rules of the Marine Department, the down-going t!ug-and-tow had the right of way, notwithstanding that the up-going vessel may have been closer to the bridge when it was opened, and that the tug-and-tow were not obliged to stop and make fast to posts until the up-going vessel had passed, as is required by the 22'nd rule of the " Canal Regulations " in regard to vessels approaching a lock. Bonham v. Ship Honoreva, liv., 51. 2. Navigation — Admiralty law — Mari- time law — Tug and tow — Contract of nmi- gation — Collision of tug — Liability of tow — Foreign ship — Proceedings in foreign court — Jurisdiction in Camada, li., 39. See Admibaltt Law. COLLOCATION. 1. Liquidation and insolvent corporation -^^Distribution and collocation — Privilegei claim. — Expenses for preservation of estate — Fire insurance premiums — Practice — Ex parte inscription — Notice — Arts. 371, SIS, Jfl9, 1043-10.^6, 1201, 1994, 1996, 2001, m — Foreign company — "Doing business in Halifax."'] — By s. 313 of the said chapter (54 Vict. ch. 58), as amended by 60 Yict. c. 34, " Every insurance com- pany or association, accident and guarantee company, established in the City of Halifax, or having any branch office, office or agency therein shall . . . pay an annual license fee as hereinafter mentioned . . . Every other company, corporation, association or agency doing business in th'e City of Hali- fax (banks, insurance companies or associ- ations, etc., excepted), shall . . . pay an annual license fee of one hundred dol- lars." — Held, that the words " every other company " in the last clause were not sub- ject to the operation of the ejusdem generis rule but applied to any company doing busi- ness in the city. Judgment appealed from overruled on this point. — A carriage com- pany agreed with a dealer in Halifax to sup- ply him with their goods and give him the sole right to sell the same, in a territory named, on commission, all monies and se- curities given on any sale to be the property of the company, and goods not sold within a certain time to be returned. The goods were supplied and the dealer assessed for the same as his personal property. — Held, Davies and Maclennan, JJ., dissenting, that the company was not " doing business in the City of Halifax," within the meaning of s. 313 of the charter and not lis^ble for the license fee of one hundred dollars there- under. • — Judgment of the Supreme Court of Nova Scotia (39 N. S. Rep. 403), af- firmed, but reasons overruled. City of Halir fax V. McLaughlin Carriage Co., xxxix., 174. And see Assessment and Taxes. 2. Raihcays — Freight rates ■ — Discrim- ination — Rebade — Construction of stat- ute — Quebec Railway Act, R. S. Q. 188S, art. 5172 — Contract by directors — Powers — Approval of tariffs.'] — An agreement by which a railway company undertakes to grant a rebate upon shipments of car lots of goods made by a manufacturer who en- gages to bear the cost of loading and un- loading his freight, unless shewn to be an artifice to secure unjust discrimination, is not in contravention of the provisions of article 5172 of the Quebec Railway Act, R. S. Q. 1888, prohibiting undue advantage, privilege or monopoly being afforded to any person or class of persons in relation to tolls. Judgment appealed from (Q. E. 21 K. B. 85) affirmed, Idington and Anglin, JJ. dissenting. — Per Brodeur, J. (approving the judgment appealed from). — The directors of a railway company may bind the com- pany by such an agreement in relation to the business of the railway without having special sanction therefor by the .sharehold- ers. Quebec and Lake St. John Railway Co. V. Kennedy, xlviii., 520. 3. Libel — Business reputation — Action by incorporated — Truth of facts alleged- Fair comment — Justification — Public inter- est — Qualified privilege — Charge to jury — Misdirection — Misleading statements — Practice — Evidence of special damage — New trial.] — There being a dispute between the parties as to the ownership of certain lands, the plaintiffs, a commercial corpora- tion, obtained special legislation vesting the lands in question in the company. On be- coming aware of this legislation, the defen- dant published letters in several newspapers accusing the company of obtaining it by political influence and preventing him vin- dicating his title in the courts. In an ac- tion to recover damages for libel, the trial judge told the jury that the defendant's ile- fence of justification would be established if they were satisfied that, although in fact untrue, the defamatory statements had been made in honest belief of their truth, and that, if the publications were an honest comment on the facts as stated, that, in it- self, would be sufficient to establish the de- fence of fair comment. On the findings of the jury, judgment was entered for the de- fendant, but this judgment was set aside, on the ground of misdirection, by the judg- 209 C'OMPAXY LAW. 210 ment appealed from and a new trial or- dered. — Held, per curiam, that where a libel conveys imputations calculated to in- jure a trading corporation in respect of its business the corporation can maintain an action for damages. — Per Duff, J. — The publication complained of was capable of being read as charging the company with having used political influence for the pur- pose of procuring legislation giving it pos- session of property in derogation of what, to its knowledge, were the defendant's rights, and this was an imputation calcu- lated to injure the commercial corporation in its business. — Held, per Idington, Duff, and Brodeur, JJ., Davies, JJ., dissenting. — That the directions by the trial judge as to the defences of justification and fair com- ment were erroneous and misleading. — Per Davies, J., dissenting.^Taken as a whole, the charge of the trial judge was clear and explicit and placed the material issues fairly before the jury, and, consequently, the judg- ment entered at the trial on the findings of the jury ought not to be disturbed. — Per Anglin, J., dissenting. — That, as a judge could not properly rule or a jury reasonably find that the defendant's letters were calcu- lated to injure the property of the plaintiffs or their business reputation, as a commer- cial corporation, they could not recover without proof of special damage. — Judg- ment appealed from (Q. R. 22 K. B. 393) afiirmed, Davies and Anglin, JJ., dissenting. Price v. Chicoutimi Pulp Co., li., 179. 4. Dominion corporation ■ — Provincial registration — Juristic disaiility — Right of action — Contract — Carrying on iusiness within province — Legislative jurisdiction —B. S. Sask. 1909, c. 13, ss. 3, 10— 'Non- compliance with S. G. Rule — Costs — Factum — Constitutional law — Practice.'] — A com- pany, having its chief place of business in the Province of Quebec and incorporated under the Dominion statute with power to trade and carry on its business throughout the Dominion of Canada, did not comply with the provisions of the " Foreign Com- panies Act," K. S. Sask. 1909, eh. 73, re- quiring registration previous to carrying on business within the Province of Saskatche- wan. In the ordinary course of its business, it sold and brought certain machinery into the province and did the work of installing it therein for a price which included setting it up and starting it working. An action for the contract price was dismissed by the judgment of the trial court (6 West. W. E. 1159), and this judgment was affirmed by the Supreme Court of Saskatchewan, on the ground that the unregistered extra-provin- cial company was denied the right of action in the courts of the province by the tenth section of the " Foreign Companies Act." — On appeal to the Supreme Court of Canada, the judgment appealed from (7 West. W. R. 89) was reversed. — Per Idington, J. — The mere setting up and starling the work- ing of the machinery by the extra-provincial company did not constitute the carrying on of business in the Province of Saskatche- wan within the meaning of the " Foreign Companies Act." — Per Anglin, J. — The in- stallation of the plant was a substantial part of the consideration of the contract and, consequently, the unregistered extra- provincial company would be denied the right of enforcing its claim by action in the courts of the province under the pro- visions of the tenth section of the " Foreign Companies Act," but, inasmuch as the legis- lation in question had the effect of depriv- ing the extra-provincial company of the status, capacities and powers which were the natural and logical consequences of its incorporation by the Dominion Government, it is ultra vires of the provincial legislature and inoperative for the purpose of depriv- ing the company of its right to maintain the action in the provincial courts. John Deere Plow Co. v. Wharton ([1915] A. C. 330) , applied. — Costs were refused the ap- pellant, on the allowance at the appeal, in consequence of non-compliance with Su- preme Court Rule No. 30 in respect of the printing of the statutes regarding which questions were raised. Linde Canadian Re- frigerator Co. V. Saskatchewan Creamery Co., li., 400. 5. Trading company — Powers — Contract of suretyship— R. S. 0. [1897] c. 191.]— An industrial company incorporated under, and governed by the " Ontario Companies Act," R. S. O. [1897) ch. 191, has no power to guarantee payment of advances by a bank to another company whose sole con- nection with the guarantor is that of a cus- tomer, for the general purposes of the lat- ter's business, and such a contract of surety- ship is ultra vires and void. — Judgment ap- pealed against (30 Ont. L. R. 87) affirmed. Union Bank v. McKillop, li., 518. 6. Mining company — Corporate powers — " Digging for minerals " — Drilling oil wells — Carrying om operations — Becoming con- tractors for such works.] — A mining com- pany incorporated under the " Companies Ordinance," ch. 61, N.-W. Terr. Con. Ord. 1905, and certified, according to section 16 of the ordinance, to have limited liability undei- the provisions of section 63 thereof, has, in virtue of the authority given to such companies by section 63o " to dig for . . . minerals . . . whether belonging to the com- pany or not," power to drill wells for min- eral oils on its own property and also to carry on similar work as a contractor on lands belonging to other persons. Idington and Duff, JJ.. dissented. — Per curiam. — Rock oil is a " mineral " within the mean- ing of section 6.3 of the " Companies Ordin- ance.''' — Per Duff, .T. — Drilling for oil is not a mining operation within the contempla- tion of sections 63 and 63a.' of the " Com- panies Ordinance." — Judgment appealed from (8 West. W. R. 996) affirmed, Iding- ton and Duff, J.J., dissenting. Dome Oil Co. v. Alberta Drilling Co., lii., 561. 7. Agreement for sale of lands — Con- struction of contract — Right of action — Partition — Administration iy ro-ovncrs — Trust — Interim account — Partial discharge of trustees. Angus v. Heinze, slii., 416. See Trusts. 8. Construction of statute — Limitations of actions — Contract for supply of electric light — Negligence — Injury to person not privy to contract — " Consolidated Railway 211 COMPANY LAW. 212 Company Act, 1896," 59 V. c. 55 (B.C.) ss. 29, 50, 60. B. C. Electric Ry. Co. v. Cromp- ton, xliii., 1. 9. Dangerous works — Defective system — Negligence of em,ployee — Liability of em- ployer for injury, xliv., 412. See Negligence. 10. Contract — Public policy — Restraint of trade — Combination — Conspiracy — Con- struction of statute — " Criminal Code," s. Jl98 — Words and phrases, " unduly " pre- venting competition, etc., xlvi., 1. See CONTKAOT. 11. 'Contract — Contracting firm becoming incorporated company — Right to assign — Novation — Breach of contract — Damages, xlvii., 398. See CONTEACT. 12. Contract by directors — Powers — Agreement — Freight rates. Quebec & Lake St. John R. R. Co. v. Kennedy, xlviii., 520. 13. Benevolent society — Life insurance — Contract — Payment of assessments — Exten- sion of time — Rules and regulations — Place of payment — Demand — Default — Suspension — Authority to waive conditions — Conduct of officials — Estoppel, xlix., 22. See Insukance, Life. 14. Assessment and taxation — Education — School boards — Taxes payable by incor- porated companies — Apportionment — Shares for public and separate school purposes — Notice — Construction of statute — Legislative jurisdiction — " B. N. A. Act. 186T," s. 92 — " Saskatchewan Act,'' 4 d 5 Edw. VII., c. Jl2, s. n — " School Assessment Act." R. S. Sask., 1909, c. 101, ss. 93, 93a, 1., 589. See Assessment and Taxation. 15. Libel — Business reputation — Action by incorporated company — Truth of alleged facts — Fair comment — Justification — Public interest — Qualified privilege — Charge to jury — Misdirection — Misleading statements — Practice — Evidence — Special damages — Neiv trial. Price v. Chicoutimii, li., 179. See Libel. 16. Contract — Purchase of raihcay bonds — Consideration — Extension of line — Breach of contract — Damages — Personal liability of president of company — Appeal — Jurisdic- tion. Wood V. Grand Valley Ry., li., 283. See Contract. 17. Debtor and creditor — Surety — Statute of Frauds — Advance to — J'hird party's pro- mise to pay, liii., 557. See Debtor and Creditor. 2. Constitutional Uaw. 18. Constitutional lair — Legislative juris- diction — Incorporation of trading compan- ies — Foreign corporations — Judicial opin- ions on references — Private rights — 45 Vict c. 119 (D.).]— The objects for which the company in question was incorporated, by the statute 45 Vict. c. 119, are within the jurisdiction of the Canadian Parliament, and are, out of the exclusive jurisdiction of provincial legislatures, and consequently such a company may be incorporated by Parliament. Re Quebec Timber Co., Cout Cas. 43. And see Constitutional Law. 19. Legislative jurisdiction — Constitu- tional law — Incorporation of companies — Private bill — Property and ciml rights — Construction of statute — B. N. A. Act, ISBt s. 92—J,5 Vict. c. i07.]— The objects of the Act to incorporate the " Canada Provident Association" (45 Vict. c. 107 (D.)), for carrying on business as a mutual benefit society throughout the Dominion of Canada do not fall within the class of subjects ' allotted to the provincial legislatures under s. 92 of the " British North America Act, 1867." — Per Ritchie, C.J., and Fournier, J. — There may be a doubt as to whether so much of the first section of the Act as en- ables the company to hold and deal in real estate beyond what may be required for their own use and accommodation, or so much of the second section as enacts that certain funds shall be exempt from execution for the debt of any member of the associa- tion, could be intra vires of the Parliament of Canada. In re Canada Provident Asso- ciation, Cout. Cas. 48. 20. Foreign corporation — Conflict of laws — Incorporation by Dominion authority — Powers — B. C. " Companies Act " — Un- licensed extra-provincial companies — "Carry- ing on business" — Contract — Transactions beyond limits of province — Promissory note! — Right of action — Juristic disability — Con- struction of statute — (B.C.) 10 Edw. TIL ■ c. 7, ss. 139, 166, 168.]— The " Companies Act" (B.C.), 10 Edw. VII., c. 7, ss. 139, 166, 168, prohibits companies incorporated otherwise than under the laws of British Columbia carrying on without registration or license in the province any part of their business ; penalties are provided for doing so without provincial registration or license; and they are denied the right of maintain- ing actions, suits or proceedings in the courts of the province in respect of any contract made in whole or in part within the province in the course of or in connec- tion with any business carried on contrary to the provisions of the Act. The appel- lant company, incorporated under the Do- minion " Companies Act," R. S. C, 1906, c. 79, has its head office in Winnipeg, Man., and did not become licensed under the B.C. " Companies Act." In February, 1911, the company entered into an agreement with A., who is domiciled in British Columbia, giv- ing him the exclusive right to sell their goods in British Columbia in pursuance of which he ordered goods from the company to be shipped from Winnipeg to him, f.o.b- Calgary, Alta., assuming all risk and charges himself from that point to Elko, B.C., where the goods were to be received and sold by him. He gave the company his promissory notes, dated at Winnipeg, for the price of these goods, some of the notes being actually signed by him at Elko. In an action by the company to recover the amount of these notes the trial judge held that the action was barred by the statute 213 COMPANY LAW. 2U and could not 'be maintained by the com- pany in any court of the Province of Brit- ish Columbia. On an appeal, per salttim, to the Supreme Court of Canada the judg- ment appealed from (18 D. L. R. 65; 2 West. W. R. 1013; 22 W. L. R. 243) was reversed, and it was — Held, per Fitzpatrick, C.J., and Davies, Duff, Anglin and Bro- deur, JJ., that the transactions which had taken place between the company and A. did not constitute the carrying on of busi- ness by the company in the Province of British Columbia within the meaning of the B. C. " Companies Act," and, therefore, the disabilities imposed by that statute could have no effect in respect of the right of the company to recover the amount claimed in the action in the provincial court. — Per Idington, J. — As the exclusive jurisdiction in respect of bills of exchange and promis- sary notes has been assigned to the Parlia- ment of Canada, under item 18 of s. 91 of the " British. North America Act, 1867,'" the word " contract " as used in s. 166 of the B. C. " Companies Act," 10 Edw. VII., c. 7, cannot be considered as having any application to promissory notes ; the plain- tiffs' right of action in the provincial court was, therefore, not barred by the provincial statute. John Deere Plow Co. v. Agnew, xlviii., 208. 21. Incorporation of companies — " Pro- vincial oijects " — Limitation — Doing busi- ness beyond the province — Insurance com- pany — "Insurance Act, 1910:" 9 & 10 Edw. VII., c. 32, s. S, s.-s. S — Enlargement of company's powers — Federal company — Pro- vincial license — Trading compa,nies.] — By s.-s. 11, s. 92, of " The British North Ameri- ca Act, 1867," the legislature of any pro- vince in Canada has exclusive jurisdiction for " The Incorporation of Companies with Provincial Objects." — Held, per Fitzpatrick, C.J., and Davies, J., that the limitation de- fined in the expression " Provincial Ob- jects " is territorial and also has regard to the character of the powers which may be conferred on companies locally incorporated. — Held, per Idington, Anglin and Brodeur. JJ., that such limitation is not territorial but has regard to the character of the powers only. — Per Duff, J. — Provincial ob- jects means "objects " which are " provin- cial " in reference to the incorporating pro- vince. Whether the " objects " of a particu- lar company as defined by its , constitution are or are not " provincial " in this sense i.s a question to be determined on the facts of each particular case substantially as a question of fact. — Held, per Fitzpatrick, C.J., and Davies, J., that a company in- corporated by a provincial legislature has no power or capacity to do business outside of the limits of the incorporating province, but it may contract with parties residing outside those limits as to matters ancillary to the exercise of its powers. — Per Idington and Brodeur, JJ. — Such company has, in- herently, unless prohibited by its charter, the capacity to carry on the business for which it was created, in any foreign state or province whose laws permit it to do so. — Per Duff, J. — A provincial company may conduct its operations outside the limits of the province creating it so long as its busi- ness as a whole remains provincial with' reference to its province of origin. — Per Anglin, J. — Such a company has, inherently, unless prohibited by its charter, the capacity to accept the authorization of any foreign state or province to carry on withiii its territory the business for which it was cre- ated. — Held, per Fitzpatrick, C..I., and Da- vies, J., that a corporation constituted by a provincial legislature with power to carry on a fire insurance business with no express limitation as to locality has no power ox capacity to make and execute contracts fo? insurance outside of the incorporating pro- vince or for insuring property situate out- side thereof. — Per Idington, Anglin and Brodeur, J.J. — Such a company has power to insure property situate within or with- out the incorporating province and to make contracts within or without the same to effect any such Insurance. In respect of all such contracts it is not material whether the owner of the property insured is, or is not, a citizen or resident of the incorporat- ing province. — Per Duff, J. — It is not neces- sarily incompatible with the provincial char- acter of the " objects " of a provincial in- surance company that it should have power to enter into outside the province contracts Insuring property outside the province. — Held, per Fitzpatrick, C.J., and Davies, J. — A provincial fire insurance company cannot make contracts and Insure property through- out Canada by availing Itself of the provi- sions of s. 3, s.-s. 3, of 9 & 10 Elw. VII., c. 32 ("The Insurance Act, 11910.") — Per Fitzpatrick, C.J., and Davies, J. — That such enactment is ultra vires so far as the provincial companies are affected. — Per Brodeur, J. — Such enactment is iiltni. vires of parliament. — Per Idington, J. — Part of said sub-section may be intra vires but the last part providing for a Do- minion license to local companies is not. — Per Anglin, J. — The said enactment is ul- tra vires except in so far as it deals with companies incorporated Tjy or under Acts of the legislature of the late Province of Canada. — Held, that the powers of a com- pany incorporated by a provincial legisla- ture cannot be enlarged either as to locality or objects, by the Dominion Parliament nor by the legislature of another province. — Held, per Fitzpatrick, C.J., and Davies, J. — The legislature of a province has no power to prohibit companies incorporated by the Parliament of Canada from carry- ing on business within the province without obtaining a license so to do from the pro- vincial authorities and paying fees therefor unless such license is imposed in exercise of the taxing power of the province. And only in the same way can the legislature restrict a company incorporated for the purpose of trading throughout the Domin- ion in the exercise of its special trading powers or limit the exercise of such powers within the province. Brodeur, J., contra. — Per Idington, J. — A company incorporated by the Dominion Parliament In carrying out any of the enumerated powers contained in s. 91 cannot be prohibited by a provin- cial legislature from carrying on business, or restricted in the exercise of its powers, within the province, though subject to exer- cise of the exclusive jurisdiction to make laws in relation to " direct taxation within the province." But a company incorpor' ated under the general powers of Parlia- ment must conform to all the duly enacted 215 COMPAjSry LAW. 216 laws of a province in which it seeks to do business. — Per Duffi, J. — A company incor- porated under the residuary legislative power of the Dominion is not in any pro- vince where it carries on business subject to the legislative authority of the province in relation to matters falling within the subject " incorporation of companies ;"_ but as regards all otter matters falling within tlie enumerated subjects of section 92 it is subject to such legislative jurisdiction just as a natural person or an unincorporated as- sociation would be in like circumstances. The enactments of ss. 139, 152, 167 and 168 of the British Columbia " Companies Act" are valid. — Per Anglin, J. — The pro- vincial legislature may impose a license and exact fees from any Dominion company if the object be the raising of revenue, or ob- taining of information, " for provincial, local or municipal purposes," but not if it is to require the company to obtain provincial sanction or authority for the exercise of its corporate powers. And the legislature can- not restrict a company incorporated for the purpose of trading throughout the Domin- ion in the exercise of its special powers nor limit the exercise of such powers within the province, nor subject such company to legislation limiting the nature or kind of business which corporations not incorpor- ated by it may carry on or the powers which they may exercise within the pro- vince. />i re Companies, xlviii., 331. See INCORPOEIATION OF Companies. 22. Constitutional law — Provincial min- ing — Power to do mining outside of pro- vince — Incorporation " with provincial oi- jects " — Territorial limitation — Comity.'] — A mining company incorporated under the law of the Province of Ontario has no power or capacity to carry on its husiness in the Yukon Territory and an assignment to it of mining leases and agreements for leases is void. Idington and Anglin, JJ., contra. — Held, per Fitzpatrick, C.J., and Davies, J., that " the incorporation of com- panies with provincial objects " as to which the provinces are given exclusive jurisdiction ("B. N. A. Act," 1867, s. 92, s.-s.ll), authorizes the incorporation of companies whose operations are confined, territorially, to the limits of the incorporating province. -'—Per Idington and Anglin, .TJ. — Such com- pany has capacity to avail itself of the sanction of any competent authority outside Ontario to operate within its jurisdiction. — Per Duff, J. — ^The term " provincial ob- jects " in said sub-section means provincial with respect to the incorporating province, and the business of mining in the Yukon is not an ohject " provincial " with respect to Ontario. The question whether capacity to enter into a given transaction is compatible with the limitation that the objects shall be " provincial objects " is one to be deter- mined on the particular facts. — Also, per Duff, J. — ^On the true construction of the Ontario " Companies Act," the appellant company only acquired capacity to carry on its husiness as an Ontario business ; and there was no legislation by the Dominion or the Yukon professing to enlarge that capacity. — Held, per Fitzpatrick, C.J. (Duff and Anglin, JJ., contra) , that to enable a joint stock company to obtain a free min- er's certificate under the regulations in force in the Yukon Territory it must be au- thorized by an Act of the Parliament of Canada, and at present only a British or foreign company could be so authorized (61 Vict. c. 49, s. 1 (0.)). Bonanza Greek Gold Mining Co. v. Tlie King, 1., 534. 23. Constitutional law — Provincial com- panies' powers — Operations heyond province — Insurance against fire — Property insured — Standing timber — Return of premiums — B. N. A. Act, 1887, s. 92 (11), xxxix., 405. See Insurance, Fibe. 24. Legislative jurisdiction — Constitvr tional law — Education — • Private Wis— Questions referred for opinions — Constnc- tion of statute, Cout. Cas. 1. See Legislation. 25. Constitutional law — Insurance — For- eign company doing business in Ganaior— Dominion license — 9 & 10 Edw. VII., c. 52, ss. 4, 70, xlviii., 260. See Constitutional Law. 3. Deceit and Fraud. 26. Incorporation — Secret arrangement — Illegal consideration for shares — Fraud — Breach of trust.] — With a view to conceal- ing the financial difiiculties of a mining com- pany and securing control of its property, the manager entered into a secret arrange- ment with the respondent whereby the latter was to acquire the liabilities, obtain judg- ment thereon, bring the property to sale under execution and purchase it for a new company to be organized in which the re- spondent was to have a large interest. The. manager, who was a creditor of the com- pany, was to have his debt secured and re- ceive an allotment of shares in the new com- pany proportionate to those held by him in the old company and he agreed that he would not i-eveal this understanding to the other shareholders. — Held, affirming the judgment appealed from (11 B. C. Eep. 466), Sedgewick, J., dissenting, that the agreement could not be enforced as the con- sideration was illegal and a breach of trust by which the other shareholders were de- frauded. Lasell V. Hannah, xxxvii., 324, 27. Paid-up-shares — Sale by broker — Prospectus — Misrepresentations — Besdt- sion — Delay — Liability of directors.] — F., in June, 1903, purchased paid-up shares in the capital stock of an industrial com- pany on the faith of statements in a pros- pectus prepared by a broker employed to sell them. In January, 1904, he attended a meeting of shareholders and from some- thing be heard there suspected that some of the said statements were untrue. After m- vestigation he demanded iacU his money from the broker and wrote to the president and secretary of the company repudiatml his purchase. At subsequent meetings ol shareholders he repeated sucb repudiahoB and demand for repayment and, in Decem- ber, 1904, brought suit for rescissionr- Ileld, that his delay, from January to De- cember, 1904, in bringing suit was not a bar and he was entitled to recover against the company. — Held, also, that he could not 217 COMPANY LAW. 21S recover against the directors who had in- structed the broker to sell the shares as they were not responsible for the misrepre- sentations in the prospectus. — Judgment of the Supreme Court of New Brunswick (38 N. B. Rep. 3641, affirming the decision at the hearing (3 N. B. Eq. 508), reversed. Farrell v. Manchester, xl., 339. -28. Su'bscHpHon for treasury stock — Con- tract — Principal and agent — Misrepresenta- tion — Fraud — Transfer of shares — Rescis- sion — Return of payments — Want of con- sideration.] — V. entered into an agreement to- purchase for re-sale the unsold treasury stock of 'a foreign joint stock company "sub- scriptions to be made from time to time as sales were made ;" it was therein provided that the company should fill all orders for stock received through V. at $15 for each stare ; that V. should sell the stock for $20 per share ; that V. should " pay for the stock so ordered with the proceeds of sales made by him or through his agency," and that the contract should continue in force so long as the company had unsold trea- sury stock with which to fill such orders. The company also gave V. authority to es- tablish agencies in Canada in connection with its casualty insurance business and to appoint medical examiners there. At the time the company had no license to carry on the Ijusiness of insurance in Canada, or any immediate intention of making arrangements to do so, and V. was an official of the com- pany and was aware of these facts. V. appointed T. the sole medical examiner of the company for Vancouver. B.C., assuring him that tlie company would commence to carry on its casualty insurance business there within a couple of months, and then obtained from him a subscription for a num- ber of shares of the company's treasury stock, which were paid tor partly by T.'s cheques, . payable to the company, and the balance by a series of promissory notes falling due from month to month following the date of tte subscription and_ made payable to V. A number of shares equal to those so sub- scribed for by T. were then transferred to him by V. out of the allotment made to him by the above mentioned agreement, the certificates therefor being obtained by V. in the name of T. from the company, but the company did not formally accept T."S subscription nor issue any treasury stock to him thereunder. The company did not commence business in Vancouver within the ■time specified by V. nor did it obtain a license to carry on the business of insur- ance in Canada until many months later. In an action by T. against the company and V. to recover back the money he had paid and for the cancellation and return of the notes : — Held, affirming the judgment ap- pealed from (7 D. L. R. 944 ; 2 West. "W. R. 658), Davies and Anglin, JJ., dissenting, that, in the transaction which took place, V. was the company's agent; that the com- pany was, consequently, responsible for the deceit practised in procuring the subscrip- tion from T. ; that there had been no con- tract for the purchase of treasury stock com- pleted between the company and T. ; that the object of T.'s subscription was not sat- isfied by the transfer of V.'s shares to him, and that he was entitled to recover back the money he had paid and" to have the notes returned for cancellation as having been paid over and delivered without con- sideration and in consequence of the fraudu- lent representations made by V. Interna- tional Casualty Co. v. Thomson, xlviii., 167. 29. Agreement by directors — Onerous con- tract — Non-disclosure to shareholders — Breaoh of contract — Damages — Settlement of accounts — Appeal — Jurisdiction — Refer- ence to master — Final judgment.'] — After some subscriptions for stock had been re- ceived and the company was about to offer other stock for public subscription, a meeting of tte directors was held at which the plain- tiff, then one of the directors and the com- pany's manager, resigned his office as a direc- tor and was appointed sales agent for the company's output of coal for five years from that date, at a liberal scale of remunera- tion, with the exclusive right to make such sales in Alberta, Saskatchewan and Mani- toba. At tte same time an arrangement was made by which the other directors de- rived advantages in regard to certain mat- ters in dispute, respecting the affairs of the company, between them and the plaintiff. The material facts and circumstances con- nected with these arrangements were not disclosed to the shareholders who then held stock in tte company nor to other persons who subsequently subscribed for shares of its stock. — Held, affirming the judgment ap- pealed from (7 D. L. E. 96 ; 2 West. W. E. 986; 22 W. L. R. 128), that, as the plain- tiff and his co-directors were in a fiduciary position and complete disclosure of the cir- cumstances in regard to the making of the contract had not been made to all the share- holders, present and future, the agreement was not binding upon the company. — The order in the judgment appealed from direct- ing that, on taking the accounts between the parties, an allowance should be made to the plaintiff, on the basis of quantum meruit, for services rendered by him while in the employ of the company was not dis- turbed. — Per Fitzpatrick, C.J., and Iding- ton, Anglin and Brodeur, JJ. — ^Where the judgment sought to be reviewed has finally disposed of one of the issues, forming a dis- tinct and separate ground of action, the Supreme Court of Canada has jurisdiction to hear and determine the appeal. La Ville de St. .Iran v. Molleur (40 Can. S. C. E. 139). and McDonald v. Belcher ([1904] A. C. 4291, followed: Hesseltine v. Nelles (47 Can. S. C. R. 230), referred to. Denman V. Clover Bar Coal Co., xlviii., 818. 30. Action for deceit — Agreement for sale — False representations — Compromise — No- tice. Pett V. Dickson, xlii. 478. See Deceit, 1. 31. Purchase of director's property — Secret profit. Bennett v. Havelock Electric Light Co., xlvi., 645. 32. Subscription for shares — Misrepre- sentation — Action for calls — Charge to jury — Misdirection — Objection — Pleading. Boechk v. Gowganda Mines, xlvi., 645. 4. DiREOTOBS, ETC. 33. Commercial corporation — Contract — Sale^ of land — Powers of general manager 219 COMPAXY LAW. 320 — Broker's commission.] — Per Taschereau, C.J., and Girouard, J. The general manager of a con^mercial corporation could not make a binding agreement for the sale of its real estate without special authorization for that purpose. Galloway v. Stobart Sons & Co., XXXT., 301. And see Sale. 34. Act of directors — Vnauthorized ex- penditure — Liability of innocent directors.] — The directors of a limited company, with- out authority from the shareholders, passed a resolution providing that, in consideration of a firm of which ' two directors were mem- bers carrying on business of a similar char- acter continuing the same until the com- pany could take it over, the company in- demnified It from all loss occasioned thereby. K. and F., two members of the firm, re- fused their assent to the terms of this reso- lution and declared their intention, of which the majority of the directors were made aware, to retire from the firm. F. subse- quently wrote to the president and another director reiterating her intention to retire and declared that she would not be respon- sible for any further liability. The com- pany afterwards took over the business of the firm, paying therefor ,$30,000 and receiv- ing assets worth $12,000, and, having eventually gone into liquidation, the liquida- tor brought an action to recover from the members of the firm the difference. The Court of Appeal held that K. and F. were not liable though their partners were : — Held, that K. and F., having received the benefit of the money paid by the company, were also liable to repay the loss. Wade v. Eendrick, xxxvii., 32. 35. Trusts — Extra renunciation — Ultra vires act of directors — Ratification — Recov- crij of moneys illegally paid — ilistake of laivf] — By a resolution of the directors, the .secretary of the company bad been author- ized to sell the company's bonds, for which he was to be paid a commission at the rate of 5 per cent, on the amounts received. Subsequently, at a time when they had no authority to do so, the directors converted the preferred stock teld by certain share- holders into bonds, and paid the secretary for his services in making the conversion at the rate of 5 per cent, on the amount of bonds thus disposed of. In an action to recover back from the secretary the moneys so received by him as commission. — Held, that, althougl:' the secretary had received the commissions under mistake of law, yet, as he must be assumed to have had know- ledge of the illegality of the transaction, the moneys could be recovered back by the company. — ^Subsequently the scheme of con- version was approved of by 'a resolution of the shareholders, but it did not appear that they had been fully informed as to the ar- rangement for the payment of a commission to the secretary in that respect, in addition to his regular salary. — Held, that the resolu- tion of the shareholders had not the effect of ratifying the payment of the commissions. Rowntree v. Sydney Land & Loan Co., xxxix., 614. 36. Disqualification of directors — Taxing personal profit — Fraud — Illegal contract — Ratification — Right of action — Shareholder — Recourse by minority — Alberta " Com- panies Ordinance,'' N.-W. Ter. Ord. No. 20 of 1901 — Construction of statute.] — ^Where the directors of a ioint stock company organ- ized under the Alberta "Companies Ordin- ance" (N.-W. Ter. Ord. No. 20 of 1901) have violated the provisions of article 57 Table "A," of that enactment (as to vacat- ing the ofiice of directors), the consequences involve not only the disqualification of the directors, but also give a right of action on the part of any shareholder for a declara- tion of such disqualification and for an ac- count of the moneys improperly received by them as profits under contracts .between them and the company. Such contracts, be- ing prohibited by the ordinance, could not be ratified by a majority of the shareholders, as the matter is not one merely of internal management. Bvrland v. Earle ((1902), A. C. 83), distinguished. — The judgment ap- pealed from (25 West. L. E. 905), was affirmed. Theatre Amusement Co. v. Stone 1. 32. 37. Powers — Sale of business premises — Seal — Agreement signed by officer — Princi- pal and agent.] — ^An industrial company, unless forbidden by its charter, has power to sell its business pi^emises in order to secure others more suitable, and a contract for such sale may be valid though not under the company's seal. — Where tlie contract is executed by an officer of the company to whom the necessary authority might be given the other party thereto is not called upon to ascertain if proper steps had been taken to clothe Mm with such authority; it is sufficient that he is the apparent agent of the company to transact bu.siness of the kind and that the power which he purports to exercise is such as,, under the constitu- tion of the company, he might possess.— Per Idington. J., dissenting. — A person deal- ing with a minor officer of a company is supposed to know what powers he has by by-law, passed in the manner provided by its charter, to enter into any unusual trans- action. In this case it was not proved that the officer signing the contract was em- powered to do so, and as the company was not authorized to deal in real estate the transaction was not one within the apparent scope of his authority. The contract was, therefore, not binding on the company.— Judgment of the Appellate Division (31 Ont L. R. 531), affirmed. McEnight Construc- tion Co. v. Vansickler, li., 374. 5. FoEEIGiy COKPOEATIONS. 38. Marine insurance — Mutual compmy — Foreign corporation — Cancellation . o/ policy — Return of unearned premium — Can- cellation by operation of law, xlvii., 429. See iNStlEANCE, Maeine. 6. Incoepoeation and Peomotioh. . 39. .Ioint stock company — Payment jO' shares — Transfer of business assets— DeW due partnership — Set-off ^— Counterclaim- Accord and satisfaction — Liability on »«*■ scription for shares — R. 8 B. C. c. Jii, «• 221 COMPAXY LAW, 222 50, 51.] — On the formation of a joint stock company to take over a partnership busi- ness each partner received a proportionate number of fully paid-up shares at their par value, in satisfaction of his interest in the partnership assets. — Held, reversing the judgment appealed from (9 B. C. Rep. 301), Davies, J., dubitante, that the transaction did not amount to payment in cash for shares subscribed by the partners within the meaning of ss. 50 and 51 of The Companies Act, R. S. B. C. c. 44, and that the debt owing to the shareholders as the price of the partnership business could not be set-off nor counterclaimed by them against their individual liability upon their shares. Fothergill's Case (8 Ch. App. 270), fol- lowed. Turner v. Cotvan, xxxiv., 160. 40. Joint stock company — Suliscription for shares — Principal and agent — Authority of agent — Conditional agreement.] — S. signed a subscription for shares in a company to be formed and a promissory note for the first payment, both ,of' which documents he delivered to the promoter of the company to which they were transferred after incorpora- tion. In an action for payment of calls S. swore that the stock was to be given to him in part payment for the goodwill of his busi- ness which the company was to take over. The promoter testified that the shares sub- scribed for were to be an addition to those to be received for the goodwill. — Held, that, though S. could, before incorporation, con- stitute the promoter his agent to procure the allotment of shares for him and give his note in payment, yet the possession by the promoter did not relieve the company from the duty of inquiring into tlie extent of his authority and, whichever of the two state- ments at the trial was true, the promoter could not bind S. by an unconditional ap- plication. Ottawa Dairy Co. v. Sorley, xxxiv., 508. 41. Partnership — Syndicate for promotion of joint stock company — Trust agreement — Construction of contract — Administration of majority of partners — Lapse of time limit —Specific performance.'] — A syndicate con- sisting of seven members agreed to form a joint stock company for the development, etc., of properties owned by two of their number, the defendants, under patent rights belonging to two other members ; the three remaining members agreeing to assist in the promotion of the proposed company. In the meantime the lands were acquired by the defendants and patent rights were as- signed to them, in trust for the syndicate, and the lands and patent rights were to be transferred to the' syndicate or to the com- pany without any consideration save the allotment of shares proportionately to the interest of the parties. The stock in the proposed company was to be allotted, hav- ing in view the, proprietary rights and moneys contributed by the syndicate mem- bers, in proportion as follows, 37^4 per cent, to the defendants who held the property, 37% per cent, to the owners of the patent rights, the other three members to receive each 10 per cent, of the total stock. A time limit was fixed within which the com- pany was to be formed and, in default of its incorporation within that time, the lands were to remain the property of the defend- ants, the transfers of the patent rights were to become void and all parties were to be in the same position as if the agreement had never been made. The tenth clause of the agreement provided that, in case of difference of opinion, three-fourths in value should control. Owing to difference in opin- ion the proposed company was not formed but, within the time limited, the plaintiff and the other two members, holding together 30 per cent, interest in the syndicate, caused a company to be incorporated for the de- velopment and exploitation of the enter- prise and demanded that the property and rights should be transferred to it under the agreement. This being refused, the plain- tiff brought action against the trustees for specific performance of the agreement to convey the land and transfer the patent rights to the company so incorporated, or for damages. — Held, that the tenth clause of the agreement controlled the administration of the affairs of the syndicate and that, as three-fourths in value of the members had not joined in the formation of a company as proposed, within the time limited, th« lands remained the property of the defend- ants, the patent rights had reverted to their original owners and the plaintiff could not enforce specific performance. Hopper v. Hoctor, XXXV., 64.5. 42. Breach of contract — Breach of trust — Assessment of damages- — Sale of mining areas — Promotion of company — Failure to deliver securities — Principal and agent — Ac- count — Evidence — Salvage — Indemnity for necessary^ expenses — Laches — Estoppel.] — The plaintiffs transferred certain mining areas to the defendant in order that they might be sold together with other areas to a company to be incorporated for the pur- pose of operating the consolidated mining properties, the defendants agreeing to give them a proportionate shsre of whatever bonds and certificates of stock he might re- ceive for these consolidated properties upon the flotation of the scheme then being pro- moted by him and other associates. In or- der to hold some of the areas it became necessary to borrow money and the lender exacted a bonus in stock and bonds which the defendant gave him out of those he re- ceived for conveyance of the properties to the company. After deducting a rateable -contribution towards this bonus, the defend- ant delivered to the plaintiffs the remainder of their proportion of stock and bonds, but did not then inform them that such deduc- tions had been made, and they, consequently, made no demand upon him for the balance of the shares and bonds until some time afterwards when they brought the action to recover the securities or their value. — Held, affirming the judgment appealed from (1 East. L. R. 54), that, whether the defend- ant was to be regarded as a trustee or as the agent of the plaintiffs, he was not en- titled, without their consent, to make the deductions, either by way of salvage or to indemnify himself for exoenses necessarily incurred in the preservatTon of the proper- ties ; and that, under the circumstances, their failure to demand delivery of the re- mainder of the securities before action did not deprive the plaintiffs of their right to recover. — If the defendant is to be consid- ered a trustee wrongfully withholding secu- rities which he was bound to deliver, he is n'd COMPANY LAW. 224 liable for damages calculated upon the as- sumption that • tbey would have been dis- posed of at the 'best price obtainable. If, however, he is to be regarded as a contrac- tor who has failed to deliver the securities according to the terms of his agreement, he is liable for damages based on the selling price of the securities at the time when his obligation to deliver tbem arose. Nant-Y- Olo and Blaina Ironworks Co. v. Grave (12 Oh. D. 738) ; The Steamship Carrisirooke Co. V. The London and Provincial Marine and General Ins. Co. (1901). 2 K. B. 861), and Michael v. Hart d- Co. ( (1902), 1 K. B. 482), followed. Mc^^eil v. Fultm., xxxviii., 198. 7. Shares and Shareholders. 43. Sale of shares - Fraud — Action for deceii — Accord and satisfaction.] — G., a director in an industrial company, transferred 290 shares of the capi- tal stock to the president to be sold for him. The president instructed an agent to sell said shares along with some of his own and some belonging to the company. Th« agent sold 25 shares of G.'s stock to J. G. repre- senting, and believing, that it was treasury stock and getting a note for the price in favour of the company. The note was in- dorsed over to G. Later J. G. discovered that the stock he had bought was not trea- sury stock and had some correspondence with the secretary of the company in which he complained of having beet deceived by the agent. ■ Eventually he gave a four months' note in renewal of that given for the price of the stock but when it fell due refused to pay it, the company having in the meantime become insolvent. In an ac- tion on the renewal note' be filed a counter- claim for damages based on the misrepre- sentation and deceit. Judgment was given against him on the note and for him on the counterclaim: — Beld, that G. was respon- sible for the fraud 'practised on the pur- chaser of his shares by the misrepresenta- tions of the agent who sold them. — Seld, also, Girouard and Davies, JJ., dissenting, that the settlement of the claim for the price of the shares by giving the renewal note and thus obtaining further time for payment was not a release of the pur- chaser's right of action for deceit. Goold v. Gillies, xl., 437. 44. Sale of stock— rEvidence of title — Dnty of vendor — Defective certificate.] — When shares in the stock of a company are sold for cash and a certificate delivered with a form of transfer indorsed purporting to be signed by the holder named therein who is not the seller, the latter must be taken to affirm that a title which will enable the purchaser to become the legal holder is vested in bim by virtue of such certificate and transfer. — A transfer was signed by the wife of the holder at his direction but not acted upon until after his death : — Held, that the authority of the wife to deal with the certificate was revoked by the holder's death and on/ a cash sale of the shares the purchaser who received the certificate and transfer so signed being unable, under the company's rules, to be registered as holder had a right of action to recover back the purchase money from the seller. — The fact that the purchaser endeavoured to have him- self registered as holder of the shares was not an acceptance by him of the contract of sale which deprived him of his right of ac- tion to have it rescinded. Nor was his ac- tion barred by loss of the defective certifi- cate by no fault of his nor of the seller. — Judgment appealed from (13 B. C. Eep. 351), reversed. Castleman v. Waghorn, Gioyn <& Co., xli., 88. 45. Sale of shares — Resolutive condition Hypothecary security — Construction of con- tract — Rescission.] — By the judgment ap- pealed from (Q. R. 18 K. B. 63), afiirmijig the judgment of the Superior Court (Q. E. 30 S. C. 56), it was held that the accept- ance of a proposal to purchase shares in a joint stock company for a price payable half in bonds and half in the stock of a new com- pany to be formed to take over the business of the first mentioned company, on condition that the shares so sold should be deposited in trust as security for the payment of the bonds and that, so soon as all the shares of that company were so deposited and its real estate transferred to the new company, a mortgage on the real estate should he exe- cuted to secure payment of the bonds, was a sale subject to a resolutive condition to be- come complete and effective only in the event of the new company acquiring the property of the first company and executing the mort- gage, and that, on breach of the condition respecting the security to be given for pay- ment of the bonds, the sale became ineffective and should be rescinded. — On an appeal to the Supreme Court of Canada, the judgment appealed from "was afBrmed. i>ominion Tex- tile Co. V. Augers, xli., 185. 46. Joint stock company — Allotment of shares — Surrender hy allottee — Unpaid calls — Transfer — Waiver.] — S. subscribed for shares in a mining company, was notified of allotment of the same and paid the amount due on a first call as agreed. Later he noti- fied the company that be withdrew his sub- scription and refusing to pay further calls was sued therefor. It turned out that when S. subscribed for the stock all the shares had been allotted by the company and those given to him had been obtained by surrender from one of the original allottees: — Heli, that under the Oiitario Companies Act, when stock has been allotted by a company, the only case in which the directors can regain control of it, is that of forfeiture for non- payment of calls. As in this case there was no forfeiture, the company did not legally own the stock allotted to S. and could not compel him to pay for it. — Held, also, that the provision in said Act that stock on which calls are unpaid cannot be transferred, is imperative and cannot be waived by the company. Smith v.. Gowganda Mines, xUv., 621. 47. Issue of shares — Authority to sign certificate — Bstoppel — Evidence.] — Beli, per Fitzpatrick, O.J., and Duflf, J., that where by statute and the by-laws of a joint- stock company certain of its oflicers are em- powered to sign stock certificates, and they sign a certificate under seal in favour of a person who has agreed to change his posi- tion on receipt of the shares it represents 225 COMPANY LAW. 226 and who is declared therein to be the holder of such shares, the company is estopped from denying that it was issued by its au- thority, even if one of the officers signing it was acting fraudulently for his own pur- poses in doing so. — Held, per Anglin, J., that the certificate is only primd facie evi- dence of the statements therein and such evidence may be rebutted by shewing that it was issued without authority. In this case, however, Davies and Idington, JJ.; contra, the company failed to make such proof. — Judgment of the Court of Appeal (23 Ont. L. R. 342) reversed, Davies and Idington, JJ.j dissenting. .Machenzie v. Mona/roh Life Assce. Co., xlv., 232. 48. Powers of company — Sale of shares — Mortgage by company — Suhsequent creditor ■ — Status.] — ^Three directors owned all the stock of a mining company to which they had advanced $43,000 for expenses of oper- ating. Two of them were at variance with the third as to the mode of operating and all refused further advances. The company having no other means of procuring money, it was agreed that the two directors should sell their stock to the third for $60,000 secured by mortgage on the company's pro- perty, the debt of $43,000 to be discharged and the purchasing director to advance funds for operating and until the first pay- ment had been made on the mortgage no such advances should be a charge on the company's property. Payments were made on the mortgage which afterwards fell into arrears and on action by the mortgagees an order was made for sale and delivery " up of possession." More than a year after the mortgage was made the mining company in- curred a debt to the respondent company which brought action for the amount and for a declaration that the mortgage was ultra vires of the company and that the judgment in the mortgage action was void. The action was dismissed at the trial. The Appellate Division held the mortgage void but only as to the excess over the indebted- ness of the company at the time it was made. — Held, reversing the judgment ap- pealed from (31 Ont. L. K. 221) and re- storing that of the trial judge, Pitzpatrick, C.J., and Idington, J., dissenting, that the mortgage was valid ; that though the ex- pressed consideration was the price of shares sold by one holder to another the real con- sideration was the discharge of the com- pany's existing indebtedness and securing of financial aid for the future. — Per Davies, Duff and Brodeur, JJ. — The judgment in the foreclosure action was a conclusive an- swer to the attack on the mortgage by the company. The Great North-Western Rail- way Co. V. Charlelois ((1899), A. C. 114) distinguished. — ^Also per Davies, Duff and Brodeur, JJ. — The trial judge having in effect decided that he had jurisdiction to pass upon the validity of the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the decision on the point of jurisdiction was not appealable. — Per Pitzpatrick, C.J., and Idington, J., dissenting. — The agreements and records made by the parties concerned in the trans- action upon which alone the mortgage in question rests shew it to have been given solely to secure to the mortgagees the price of their sales of shares in the company to another shareholder and that, as such, the mortgage was ultra vires and void as against any creditors of the company. Hughes v. Northern Electric d Manf'g Co., 1., 626. 49. Contract — Sale — Payment in company stock — Unorganized company — Time for de- livery.] — J. agreed, by contract in writing, to sell certain coal areas to E.., a promoter of a mining company which, it was expected* would eventually take tbem over. The price was to be paid partly in cash and the bal- ance in stock of the company to be delivered within six months. The promoters were unable to secure the necessary capital and the company had never been organized. In an action claiming damages for breach of the contract to deliver the stock. — Held, Duff, J., expressing no opinion, that the time limit in the contract and circumstances disclosed at the trial, shewed that the par- ties intended that the stock to be delivered was that of a fuUy organized company. — Per Pitzpatrick, C.J., and Davies, J., that both parties knew when the contract was made that no such stock existed; and as it never came into existence, for which R. was not to blame, the contract could not be enforced. Idington and Anglin, JJ., contra. — Per Da- vies, J. — The contract to deliver the stock was not an unqualified one, but was depen- dent upon the successful flotation of the bonds in the market. — Per Duff, J. — The stipulation as to time in the contract was not of its essence, but R. was to have a rea- sonable time, the nature of the business he was engaged in being considered, for delivery of the stock ; some time before the action J. abandoned his claim to the stock and de- manded its value in money as damages, but up to that time there had been no breach on R.'s part and he had done nothing to entitle J. to claim that the contract was rescinded. — Per Idington and Anglin, JJ. — The con- tract was absolute for delivery of the shares within six months or a reasonable time thereafter ; the Court cannot import into it the condition of successful flotation ; R. has not fulfilled his part and J. is entitled to substantial damages for the breach. — Judg- ment of the Supreme Court of Nova Scotia (49 N. S. Rep. 12), reversed, Idington and Anglin, JJ., dissenting. Roche v. Johnson, liii., 18. 8. Winding-up. 50. Winding-up Act — Joint stock company — Gontri'butories — Consideration for shares,] — H. and others, interested as creditors and otherwise in a struggling firm, agreed to pui-chase the latter's assets and form a com- pany to carry on its business, and they severally subscribed for stock in the pro- posed company to an amount representing the value of the business after receiving fin- ancial aid which they undertook to furnish. A power of attorney was given to one of the parties to purchase said assets, which was i.c.D. — 8 227 COMPAXY LAW. 228 done, payment being made by the discount of a note for $2,000 made by H. and in- dorsed by another of the parties. The com- pany having been formed, the said assets were transferred and the said note was re- tired by a note of the company for $4,000 indorsed by H., which he afterwards had to pay. H. also, 'or the company in Buffalo of which he was manager, advanced money to a considerable amount for the company, which eventually went into liquidation. After the company was formed, in pursu- ance of the original agreement between the parties, stock was issued to each of them as fully paid up according to the amounts for which they respectively subscribed, and in the winding-up proceedings they were respectively placed on the list of contribu- tories for the total amount of said stock. The ruling of the local master in this re- spect was affirmed by a judge of the High Court and by the Court of Appeal. — Held, reversing the judgment of the Court of Ap- peal, Davies, and Nesbitt, JJ., dissenting, that as all the proceedings were in good faith and there was no misrepresentation of material facts, and as H. & S. had paid full value for their shares, the agreement by which they received them as fully paid up was valid and the order making them con- tributories should be rescinded. — Held, per Davies and Nesbitt, JJ., that as they did not pay cash or its equivalent for any por- tion of the shares as such the order should stand. Hood v. Eden, xxxvi., 476. 51. Liquidation of insolvent corporation — Distiibution and collocation — Privileged claim — Expenses for preservation of estate — Fire insurance premiums ■ — Practice — Ex parte inscription — Notice — Arts, 371, 373, 419, IO43-IOJ16, 1201, 1994, 1996, 20O1, 2009 C. 0.] — M. acquired the factory and plant of an insolvent company which had been sold under execution by the sheriff, and, pending litigation during the winding-up of the com- pany, operated and maintained the factory as a going concern. The sheriff's sale was set aside and JI. then abandoned the pro- perty to the curator of the estate, and filed a claim, as a privileged creditor, for neces- sary and useful expenses incurred by him in preserving the property for the general benefii of the mass of the creditors, includ- ing therein charges for moneys paid as pre- miums on policies of fire insurance effected in his own name during the time he had held possession. — Held, that, in the absence of evidence to shew that such insurances had been so effected otherwise than for his own exclusive interest, he could not be col- located by special privilege, on the distribu- tion of the proceeds of the estate, for the amount of the premiums. — When the ap- peal first came on for hearing upon inscrip- tion ex parte, on suggestion by one of the creditors, not made a party to the appeal, the court ordered the postponement of the hearing in order that all interested parties might be notified. McDougall v. Banque d' Hochelaga, xxxix., 318. 52. Winding-^^p proceedings — Company in liquidation — Sale of assets — Consent to sale of mortgaged ship — Sale hy order of court — Mariners' liens — Sale free from incum- hrances — Special fund — Privileged charge — Priority — Valuation of security — Release of mortgage — Marshalling securities — Sub- rogation.'i — A ship which belonged to a com- pany in liquidation was mortgaged to a bank and was also subject to maritime liens for seamen's wages due at the time of the wind- ing-up order. The bank consented to the sale of the ship, by the liquidator, free from incumbrances, at the same time as he sold the other assets of the company by direction of the court. He sold the ship separately and free from incumbrances for $5,000, which was credited, as a special fund, in his accounts. The bank subsequently filed its claim, valuing its security on the ship at $5,000. The purchasers took the ship to sea and it became a total loss. The bank then made claim to the whole of the fund realized on the sale of the ship and their claim was opposed on behalf of the wage lien-holders claiming the right to be paid by priority out of this fund. — Held, aflirmiug the judgment appealed from (4 West. W. R. 1271; 25 West. L. R. 92 ; 12 D. L. R. 807) that by its consent to the sale of the ship under direc- tion of the court, free from incumbrances, the bank had assented to the conversion thereof released from its mortgage and that the proceeds of the sale of the ship should be apportioned amongst the creditors in the order and according to the priorities pro- vided by law ; consequently it was not en- titled to any special charge on the fund re- alized upon its sale. — Held, further, that the rights of the wage-earners holding maritime liens were not affected by the loss of the ship after it had been sold by the liquidator under the order of the court and that they were entitled to recover their claims out of the fund realized upon the sale of the ship in priority to the mortgagee. — [Memo. — The court ordered that the right of the bank, if any, to relief, by way of subrogation or marshalling of securities, should be reserved to be dealt with on further proceedings in the winding-up of the company.] Traders Bank v. Lockwood, xlviii., 593. 5.3. " Winding-up Act " — Insolvent Imk — Appointment of liquidators — Appointing another hank — Discretion of judge — Appeci (xviii., 707) ; Cam. Cas. 209. See " Winding-up Act." 54. Insolvent company — Sale of assets ly liquidator — Sale "free from incumbrances " — Conversion — Breach of contract. Domin- ion Linen Co. v. Langley. 55. Winding-up proceedings — Company in liquidation — Sale of assets — Consent to sale of mortgaged ship — Sale by order of court — Mariners' liens — Sale free from in- cumbrances — Special fund — Privileged charge — Priority — Valuation of security- Release of mortgage — Marshalling securities — Subrogation. Traders Bank v. Lochwooi, xlviii., 593. 56. Principal and surety — Insolvency oj debtor — Action by liquidator against princi- pal creditor — Compromise — Agreement not to rank — Paryment by sureties — Right of s»* ties to rank, 1., 100. See Principal and Surety. 229 COXDITIOX. 230 COMPENSATION. 1. Pleading — Cross-demand — Arts. 3, ^OJ, 215, ill, C. P. Q. — Practice — Damages — Construction of contract — Liquidated dam- ages—Penal clause— Arts. 1076, 1186, 1188 C. C. — Estoppel — Waiver.'i — A debt which is not clearly liquidated and exigible cannot be set off in compensation of a claim upon a promissory note except by means of a cross- demand made under art. 17 of the Code of Civil Procedure of the Province of Quebec. Judgment appealed from affirmed. Nesbitt and Idington, JJ., dissenting. — 'By a clause in a contract for the construction of works, the completion thereof was undertaken with- in a specified time and in default of com- pietion as stipulated it was agreed that the contractor should pay " as liquidated dam- ages, and not as a penalty, the sum of fifty dollars for every subsequent day until the completion.'' The works were not eomijleted within the time limited, and, in consequence, both parties joined in a petition to a muni- cipal corporation for extension of the time during which subsidies it had granted to- wards the cost of the works could be earned. The petition was granted and the works were completed within the extension of time al- lowed by the corporation. Seld, Nesbitt and Idington, JJ., dissenting, that damages ac- cruing under the clause in question did not, upon mere default, become sufficiently liqui- dated and ascertained so as to be set off in compensation against a claim upon a promis- sory note. Held, per Girouard and Davies,JJ., (Xfsbitt and Idington, JJ., contra), that by joining in the petition for extension of time the party in whose favour the penal clause might take effect had waived the right to claim damages thereunder during the period of the extension so obtained in the interests of. both parties to the contract. Ottawa, Northern rf Western Bailivay Go. v. Domin- ion Bridge Co., xxxvi., 347. 2. Expropriation of lands — Damages. War- iiirton V. Attorneij-Geiieral for Canada, Cout. Cas. 307. 3. Exiiropriation of land — Payment — Mar- ket rnlue — Potential value — Evidence, xxxviii., 149. See ExPROPEiATiON. 4. Title to land — Promise of sale — Entry in land-register — Tenant hy sufferance — Sqiiaiier's rights — Possession in good faith — Erirlion — Compensation for improvements — ■ Rent>i. issues and profits — Set-off, xxxix., 47. See Title to Land. 5. Set-off — Application of judgments — Equitable assignment — Pi-actice — Stay of execution, 0am. Cas. 99. See Set-off. And see Damages. See Expeopriation. CONDITION. 1. Practice — Pleading — B.C. Rule 168 — New points raised on appeal — Condition precedent — Construction of statute — 59 Vict. c. G^, ss. 9, 2o (B. C.) — Mineral claim — Expropriation — Watercourses — Trespass — Damages — Waiver — Injunction.] — The B. C. Sup. Ct. Rule 168, provides that " any condition precedent, the performance of which is intended to be contested, shall be distinctly specified in his pleadings by the plaintiff or defendant (as the case may be), and, subject thereto, an averment of the performance or occurrence of all conditions precedent, necessary for the case of the plaintiff or defendant, shall be implied in his '•pleadings." In an action for trespass and a mandatory injunction, the defendants pleaded the right of entry under a private Act, and the consent or acquiescence of the plaintiffs. The plaintiffs replied setting up the failure of defendants to comply with certain conditions precedent to the privileges claimed but did not set up another condi- tion precedent upon which the judgment ap- pealed from proceeded, though it was not referred to at the trial — Held, Killam, J., contra, that the rule refers rather to cases founded on contracts than to those where statutory authority is relied upon and that the plaintiffs need not have replied as they did, but, having done so without setting up the condition specially relied upon, in ap- peal, thereby possibly misleading the de- fendants, they were properly punished by the court below by being deprived of their costs in appeal. — Per Killam, J. — It was impro- per for the court appealed from to allow the absence of proof to be set up for the first time on the appeal. Sandon Water Works and Light Co. v. Byron N. White Co., xxxv., 309. And see Practice. 2. Vendor and purchaser — Sale of mort- gaged lands — Agreement — Condition pre- cedent — Cash payment — Default — Objection to title — Repudiation — Specific perform- ance.] — An agreement for the sale of land provided that the purchase-money was^to be paid by instalments " .$10,000 cash on the signing of this agreement, the receipt of which is hereby acknowledged," the remain- ing instalments to be paid in one, two and four years, with- interest from the date of the agreement, and there was a proviso mak- ing time of the essence of the contract and, on default in performance of conditions and payment of instalments, for the cancellation of the agreement by the vendors on giving written notice to the purchaser. The land in question formed part of a larger area and there was an undischarged mortgage upon the whole property of which both par- ties had knowledge at the time of the agree- ment. The cash payment was not made, the purchaser refusing to pay this amount until the mortgage was severed and apportioned so that the land mentioned in the agreement should bear only a determinate share there- of, and the agreement amended to this effect. The vendors then withdrew from the agree- ment by a letter addressed to the pur- chaser's solicitor. In an action against the vendors for specific performance, — Held, per Da vies and Anglin, JJ. — The execution of the agreement constituting the relationship of vendors and purchasers was the consid- eration for the cash payment then to be made and, in default of such payment, the obligation to sell and convey the lands with 231 CONDITION. 232 a good title did not become binding upon the vendors. — Per Duff and Brodeur, JJ. — Payment of the ten thousand dollars in cash was a condition precedent to the constitu- tion of any obligation by the vendors to sell or convey the lands and, consequently, to *hew good title. — Per Idington, J. — In the circumstances the purchaser's refusal to make the cash payment was a repudiation of the agreement which deprived him of the right to a decree for specific performance. — Judgment appealed from (1 West. W. K. 562) reversed. (Leave to appeal to Privy Council was refused 9th Dec, 1912). Gush- ing V. Knight, xlvi., 555. 3. Rideau canal lands — Mis-user — Forfei- ture — Condition subsequent — Jurisdiction of Exchequer Court of Canada — Costs. Wright v. The Queen, Gout. Gas. 151. 4. Crown lands — Settlement of Manitoia claims — Constructimi of statute — 2'itle to lands — Operation of statutory grant — Transfer in prwsenti — Condition precedent — Ascertainment and identification of swamp lands — Revenues and emhlements — Consti- tutional law, xxxiv., 287. 5. Building contract — Condition precedent — Right of action, xxxiv., 453. See Action. 6. Fire insurance — Contract of re-insur- ance — Trade customs — Conditions of con- tract — ''Rider" to policy — Limitations of actions — Commencement of prescription — Art. 2236 C. C, xxxv., 208. See INSUKANCE, FlKE. 7. Municipal corporation — Assessment and taxes — Contestation of roll — Lim,itation of actions — Interruption of prescription — Sus- pensive condition — Construction of statute — Collection of taxes — Art. 2236 G. C, xxxv., 223. See Assessment and Taxes. 8. Appeal — Jurisdiction — Ainount in con- troversy — Conditional renunciation — Costs on appeal in court ielow — Costs of enquSte — Nuisance ■ — ■ Statutory powers — Negligence — Legal maxim, xxxv., 255. See Appeal — Damages. 9. Evidence — Verdict — New trial — Life insurance ■ — Accident policies — Conditions of contract — Misrepresentations — Non-dis- closure — Words and terms — Rule of inter- pretation — Warranties, xxxv., 266. See Evidence. 10. Construction of agreement — Sale of goods — Breach of contract — Specific per- formance — Damages, xxxv., 482. See Contract. 11. Syndicate to promote joint stock com- pany — Partnership — Trust agreement — Con- struction of contract — Administration by majority of partners — Lapse of time limit — Specific performance, xxxv., 645. See Company. 12. Composition and discharge — Construc- tion of deed — Novation — Reservation of col- lateral security — Delivering up evidence of debt, xxrvi., 18. See Debtoh and Ceediioe. 13. Sale of goods — Suspensive condition Terms of credit — Delivery — Pledge -~ Shipping bills — Bills of lading — Indorse- ment of bills — Notice — Fraudulent transfer — Insolvency — Banking — Bailee receipt- Brokers and factors — Principal and agent Resiliation of contract — Revendication — Damages — Practice — Pleading, xxxvi 406. See Sale. 14. Railway aid — Municipal by-laic — Condition precedent — Part performance- Annulment of by-law — Right of action — As- signment of obligation — Notice — Significw- lion upon debtor — Art. 1571 C. C., xxxvi. 686. See Action. 15. Supply of electric light — Cancellation of contract — Condition for terminating ser- vice — Interest in premises ceasing — "Heirs" — "Assigns," xxxix., 567. See Conteact. 16. Railway aid — Provincial subsidy — Construction of statute — Breach of condi- tion — Compromise by Crown officers — 01- ligation binding on the Crown — Extension of railway — Right of action — Application of subsidy, xxxix., 682. See Action. 17. Title to land — Sale — Construction of deed — Reservation of growing timber — Rights of vendor and purchaser — Resolutive condition, xl., 98. See Deed. 18. Mining regulations — ■ Sydraulic lease — Breach of conditions — Construction of deed — Forfeiture — Right of lessees — Procedure on inquiry — Judicial duties of arbitrator, xl., 281, 294. See Mines and Mining. 19. Contract — Construction of agreement- Fee simple — Sale of timber — Right of re- moval — Reasonable time, xl., 557. See Contract. 20. Waterworks — Statutory contract— Bt- elusive franchise — Condition of defeasance- Forfeiture of monopoly — Demurrer — RigH of action by municipality — Rescission — krt, 1065 C. C.~40 Vict. c. 68 (Que.), xl., 629. Sec Action. 21. Contract — Supplying electrical enerst —Delivery — Payment at flat rate — OWijo- tion to pay for pressure not utilized — Sok of commodity — Agreement for service. Uo«i- real v. Montreal Light, Heat, etc., xlii., 431. See Conteact. 22. Construction of contract — Precedent- Arbitration and award— Right of aciio't xliv., 179. See Contract. 233 COXFLICT OF LAWS. 234 23. Construction of statute — Bridges ■ — Crossing iy engines — Condition precedent — R. S. 0. (i897) c. 242—3 Edw. YII. c. 7 s. J/S—l Edw. VII. c. 10, s. 60, xliv., 187. See Statute. 24. Fire insurance — Conditions of policy — Notice of loss — Imperfect proofs — Non- payment of premium — Waiver — Application of statute — Remedial clause, xliv., 419. See Insurance, Fire. 25. Irrigation works — Nuisance — 06- struction of highways — Dvty to iuild and maintain bridges — Construction of statute, xliv., 505. See Statute. 26. Municipal corporation — Building by- law — Dangerous constructions — Abate- ment of nuisance — Condition precedent — Notice — Order to repair — Demolition of structure — Trespass — Forcible entry — Tort — Damages — Construction of statute — Montreal city charter, xliv., 579. See Municipal Cohporation. 27. Accident insurance — Condition of policy — Notice — Tender before action — Waiver, xliv., 386. See Insurance, Accident. 28. Promissory note — •Signature in blank — Discount — Principal and agent — Condi- tion as to use of note — Bond, fide holder-^ " Bills of Exchange Act," S. C. 1906, c. 199, ss. 31, 32, xlv., 401. See Bills and Notes. 29. Title to land — " Torrens System " — Priority of right — Registration — Caveat — Notice — Construction of statute — Sas- katchewan "Land Titles Act," 6 Edw. VII., c. 21t — Equities between purchasers — As- signment of contract — Right enforceable against registered owner, xlv., 551. See Title to Land. 30. Promissory note — 'Special indorsement — Pledge — Collateral security — Holder in due course — Payment and satisfaction — Liability on current account, xlvi., 564. See Banking. 31. Vendor and purchaser — Sale of land — Condition dependent — Deferred payment- Disclosure of title — Abstract — Refusal to complete — Lapse of time — Defeasance — Specific performance, xlvii., 114. See Vendor and Purchaser. 32. Railways — Carriage of passenger — Special contract — Notice — Negligence — Exemptions from liability, xlvii., 622. See Railways. 33. Cancellation of contract — Expelling contractor — Condition precedent — Posses- sion of plant — Waiver — Seizure in execu- tion — Interpleader — Insolvency — Abandon- ment of woriis — Suretyship. Uplands, Lim- ited V. Goodacre, 1., 75. See Contract, 2. 34. Contract — Cancellation — ■ Expelling contractor — Possession of plant — Waiver — Seizure in execution — Interpleader — Insol- vency — Abandonment of works ■ — Surety- ship, 1., 75. See Contract. 35. Lease of land — Special condition — Promise of sale — Option — Pacte de pr4fer- ance — Unilateral contract — Real rights — Registry laws — Arts. 2082, 2085 C. C. — Specific performance — Damages — Right of action. St. Denis v. Quevillon, li., 603. See Lease, 2. 36. Contract — " Consistent " conditions — Impossibility of performamoe — Release from liability. Browning v. Masson, lii., 379. See Contract. CONFESSION. 1. Contract by municipal corporation — Powers — By-law or resolution — Right of action — Confession of judgment — Evidence Admissions — Pleading — Estoppel by re- cord — Art. 12Jf5 C. G. — Concurrent find- ings of fact — Practice on a/ppeal, xxxiv., 495. See Evidence. 2. Crown case reserved — Admission of evi- dence — Res gestw, xxxviii., 284. See Criminal Law. CONFLICT OF LAAVS. 1. Evidence — Provincial laws in Canada — Judicial notice — Conflict of laws.^ — ^As an appellate tribunal for the Dominion of Can- ada, the Supreme Court of Canada requires no evidence of the laws in force iu any of tht provinces or territories of Canada. It is bound to take judicial notice of the statutory or other laws prevailing in every province or territory in Canada, even where they may not have been proved in the courts below, or although the opinion of the judges of the Supreme Court of Canada may differ from the evidence adduced upon those points in the courts below. Cooper v. Cooper (13 App. Cas. 88) followed. — Note: Cf. R. S. C. (1906) c. 145, s. 17. Logan v. iee, xxxix., 311. And see Negligence. 2. Grand Truyik Railway of Canada — Pas- !38 under the provisions of the Supreme and Exchequer Courts Act, where the questions may affect private rights that may couie be- fore the court judicially, and which ought not to be passed upon without a trial. — The objects for which the company in question was incorporated, by the statute 45 Vict, c. 119, are within the jurisdiction of the Canadian Parliament, and are out of the ex- clusive jurisdiction of provincial legislatures, and, consequently, such a company may bo incorporated by Parliament. Re Qtiebcc Timber Co., Cout. Gas. 43. 4. Aid to civil power — Pay of militia — Legislative jurisdiction — Civil rights.'\ — The Supreme Court dismissed an appeal taken on the grounds (1) that the Parliament of Can-* ada had no constitutional right, in the Mili- tia Act, to impose civil obligations upon any provincial municipality for the payment of the troops, and (2) that as the riots in question were confined to Montreal harbour, controlled by Dominion commissioners and outside the corporation limits, the city was not liable under the statute even should it be held constitutional. City of Montreal v. Gordon, Cout.-Cas. 343. 5. Criminal law — Jurisdiction of magis- trate — Criminal Code, s. 785 — Constitution of criminal courts — General Sessions of the Peace.] — By s. 785 of the Criminal Code any person charged before a police magis- trate in Ontario with an offence which might be tried at the General Sessions of the Peace, may, with his own consent, be tried by the magistrate and sentenced, if convicted, to the same punishment as if tried at the General Sessions. By an amendment in 1900 (63 Vict. c. 46) the pro- visions of said section were extended to police and stipendiary magistrates of cities and towns in other parts of Canada. — Held, that though there are no courts of General Sessions except in Ontario, the amending Act is not, therefore, inoperative but gives to a magistrate in any other province the jurisdiction created for Ontario by s. 785. — ■ Though the organization of courts of crimi- nal jurisdiction is within the exclusive pow- • ers of the provincial legislatures, the Parlia- ment of Canada may impose upon existing courts or individuals the duty of administer- ing the criminal law and its action to that end need not be supplemented by provincial legislation. In re Vancini, xxxiv., 621. 6. Assessment and taxation — Exemptions from taxation — Land subsidies of the Cana- dian Pacific Railway — Extension of boun- daries of Manitoba — Construction of statutes —B. N. A. Acts 1867 and 1871—33 Vict., 3 (D.)—.',3 Vict.'c. 25 (D.)~J,Jt Vict. c. IJ, (D.) — JfJf Vict. cc. 1 and 6 (3rd sess.) {Man.) — Construction of contract — Grant in prwsenti — Cause of action — Jurisdiction —-Waiver.] — The land subsidy of the Cana- dian Pacific Railway Company authorized by the Act, 44 Vict. 1 (D.), is not a grant in prcesenti and, consequently, the period of twenty years of exemption from taxation of such lands provided by the sixteenth section of the contract for the construction of the Canadian Pacific Railway, begins from the date of the actual issue of letters patent of grant from the Crown, from time to time, after they have been earned, selected, sur- veyed, allotted and accepted by the Cana- dian Pacific Railway Company. — The ex- emption was from taxation " by the Domin- ion, or any province hereafter to be estab- lished or any municipal corporation therein." Held, that when, in 1881, a portion of the North-West Territories in which this exemp- tion attached was added to Manitoba the latter was a province " thereafter estab- lished," and such added territory continued to be subject to the said exemption from taxation. — The limitations in respect of legislation affecting the territory so added to Manitoba, by virtue of the Dominion Act, 44 Vict. c. 14, upon the terms and conditions assented to by the Manitoban Acts, 44 Viet. (3rd sess.), ec. 1 and 6, are constitutional limitations of the powers of the Legisla- ture of Manitoba in respect of such added territory and embrace the previous legisla- tion of the Parliament of Canada relating to the Canadian Pacific Railway and the land subsidy in aid of its construction. — Taxation of any kind attempted to be laid upon any part of such land subsidy by the North-West Council, the North-West Legis- lative Assembly or any municipal or school corporation in the North-West Territories is Dominion taxation within the meaning of the sixteenth clause of the Canadian Pacific Railway contract providing for exemption from taxation. — Per Taschereau, C.J. In the case of the iSpringdale School District, as the whole cause of action arose in the North-West Territories, the Court of King's Bench for Manitoba had no jurisdiction to entertain the action or to render the judg- ment appealed from' in that case and such want of jurisdiction could not be waived. — (Leave to appeal to Privy Council refused, 27th Feby., 1907.) ISforth Cypress v. Can. Pac. Ry. Co.; Argyle v. Can. Pav. Ry. Co.; Can. Pac. Ry. Co. v. Springdale, xxxv., 550. 7. Constitutional law — Railway com- pany — A'egligence — Agreements for ex- emption from liability — Power of Parlia- ment to prohibit.] — ^An Act of the Parlia- ment of Canada providing that no railway company within its jurisdiction shall be re- lieved from liability for damages for per- sonal injury to any employee by reason of any notice, condition or declaration issued by the company, or by any insurance or pro- vident association of railway employees ; or of the rules or by-laws of the association, or of privity of interest or relation between the company and the association or contribu- tion of funds by the company to the asso- ciation ; or of any benefit, compensation or indemnity to which the employee or his per- sonal representatives may become entitled to or obtain from such association; or of any express or implied acknowledgment, acquit- tance or release obtained from the associa- tion prior to such injury purporting to re- lieve the company from liability, is intra vires of said Parliament. Nesbitt, .J., dis- senting. (Appeal to the Privy Council dis- missed, [1907] A. C. 65.) In re Railway Act, 190Jf, xxxvi., 136. 8. Inter-provincial and international fer- ries — Establishment or creation — License — Franchise — Exclusive right — Powers of Parliament— R. 8. C. c. 97 — 51 Vict. c. 23 239 CONSTITUTIONAL LAW. 240 (D.).]— Chapter 97 R. S. C. "An Act re- specting Ferries," as amended by 51 Vict. c. 23, is intra vires of the Parliament of Canada. ■ — The Parliament of Canada has authority to, or to authorize the Governor- General in Council to establish or create ferries between a province and any British or foreign country or between two provinces. The Governor-General in Council, if author- ized by Parliament, may confer, by license or otherwise, an exclusive right to any such ferry. In re International and Inter-Pro- vincial Ferries, xxxvi., 206. 9. Constitutional law ■ — Construction of statute — B. N. A. Act, 1867, s. 92, s.-s. 10 Co) — Legislative ^jwisdictioni — Parliament of Canada — Local works and undertakings — Recital in preamble — Enacting clause — Gen- ei-al advantage of Canada, etc. — Subject mat- ter- of legislation — Presumption as to legisla- tion of Pa/rliament ieing intra vires — Prac- tice — Motion to refer case for further evi- dence.] — In construing an Act of the Parlia- ment of Canada, there is a presumption in law that the jurisdiction has not been ex- ceeded. — Where the subject matter of legis- lation by the Parliament of Canada, al- though situate wholly within a province, is obviousljf beyond the powers of the local legislature, there is no necessity for an en- acting clause specially declaring the works to be for the general advantage of Canada or for the advantage of two or more of the provinces. — Semlle, per Sedgewick and Da- vies, JJ. (Girouard and Idington, JJ. contra). A recital in the preamble to a special private Act, enacted by the Parlia- ment of Canada, is not such a declaration as that contemplated by sub-section 10 (c) of section 92 of the British North America Act, 1867, in order to bring the subject mat- ter of the legislation within the jurisdiction of Parliament. — A motion made, while the case was standing for judgment, to have the case remitted back to the courts below for the purpose of the adduction of newly-dis- covered evidence as to the refusal of Par- liament to make the above-mentioned de- claration was refused with costs. Hewson v. Ontario Power Co., xxxvi., 596. 10. Parliament — Power to legislate — Rail- ways — Railway Act, 1888, ss. 187, 188 — Protection of crossings — Party interested — Railway committee — Board of Railway Gom- sioners — "Railway Act, 1903."] — Sections 187 and 188 of the "Railway Act, 1888," empowering the Railway Committee of the Privy Council to order any crossing over a highway of a railway subject to its jurisdic- tion to be protected by gates or otherwise, are intra vires of the Parliament of Canada. Idington, J., dissenting. — Sections 186 and 187 of the "Railway Act, 1903," confer similar powers on the Board of Railway Commissioners. These sections also author- ize the committee to apportion the cost of providing and maintaining such protection between the railway company and " any person interested." — Held, Idington, J., dis- senting, that the municipality in which the highway crossed by the railway is situate is a " person interested " under said sections. City of Toronto v. Grand Trunk Ry. Co., xxxvii., 232. 11. Liahilities of province at Confedera- tion ■ — Special funds — Rate of interest — Trust funds or debt — Award of 1870 — B. N. A. Act, 1867, ss. Ill and US.] — ^Among the assets of the Province of Canada at Con- federation were certain special funds, namely, U. C. Grammar School Fund, U. C. Building Fund and U. C. Improvement Fund, and the province was a debtor in re- spect thereto and liable for interest thereon. By s. Ill of the B. N. A. Act, 1867, the Dominion of Canada succeeded to suet lia- bility and paid the Province of Ontario in- terest thereon at five per cent, up to 1901 In the 'award made in 1870 and finally es- tablished in 1878, on the arbitration, under s. 142 of the Act to adjust the debts and -assets of Upper and Lower Canada, it was adjudged that these funds were the pro- perty of Ontario. In 1904 the Dominion Government claimed the right to reduce the rate of interest to four per cent., or if that was not acceptable to the province to hand over the principal. — On appeal from ithe judgment of the Exchequer Court in an action asking for a declaration as to the rights of the province in respect to said funds: — Held, affirming said . julgment (10 Ex. C. R. 292), Idington, J., dissenting, that, though before the said award the Do- minion was obliged to hold the funds and pay the interest thereon to Ontario, after the award the Dominion had a right to pay over the same with any accrued interest to the province and thereafter be free from liability in respect thereof. — Held, also, that until the principal sum was paid over, the Dominion was liable for interest thereon at the rate of five per cent, per annum. Atty.- Qen. of Ontario v. Atty.-Oen. of Canada, xxxix., 14. 12. Indian lands — Extinguishment of In- dian title — Payment by Dominion — Liability of Province — Exchequer Court Act, s. S3— Dispute between Dominion and Province.] — Where a dispute between the Dominion and a province of Canada, or between two pro- vinces, comes before the Exchequer Court as provided by =i. 32 of R. S. C. [1906] e. 140, it should be decided on a rule or principle of law and not merely on what the judge of the court considers fair and just between the parties. — rin 1873 a treaty was entered into between the Government of Canada and the Salteaux tribe of Ojibeway Indians in- habiting land acquired by the former from the Hudson Bay Co. By said treaty the Salteaux agreed to surrender to the govern- ment all their right, title, and interest in and to said lands and the government agreed to provide reserves, maintain schools and prohibit the sale of liquor therein and al- low the Indians to hunt and fish, to make a present of $12 for each man, woman and child In the bands and pay each Indian ?5 per year and salaries and clothing to each chief and sub-chief ; also to furnish farming implements and stock to those cultivating land. At the time the treaty was made the boundary between Ontario and Manitoba tad not been defined. When it was finals d_etermined, in 1884, it was found that 30,500 square miles of the territory affected by it was in Ontario and in 1903 the Dominion Government brought before the Exchequer Court a claim to be re-imbursed for a pj^O' 241 CONSTITUTIONAL LAW. 242 portionate part of the outlay incurred in extinguishing the Indian title. The pro- vince disputed liability and, by counterclaim, asked for an account of the revenues re- ceived by the Dominion while administer- ing the lands in the province under a pro- visional agreement pending the adjustment of the boundary. — Beld, reversing the judg- ment of the Exchequer Court (10 Ex. C. E. 445), Girouard and Davies, J J., dissenting, that the province was not liable ; that the treaty was not made for the benefit of On- tario, but in pursuance of the general policy of the Dominion in dealing with Indians and with a view to the maintenance of peace, order and good government in the territory affected ; and that no rule or principle of law made the province responsible for ex- penses incurred in carrying out an agree- ment with the Indians to which it was not a party and for which it gave no mandate. Province of Ontario v. Dominion of Canada, xlii., 1. 13. Tramway — Provincial railway — " Through trafflc " — Legislative jurisdiction — Powers of Board of Railway Commis- sioners — Construction of statute — R. S. C. (1906), c. ST, s. 8 {J))—"B. N. A. Act," 1861, ss. 91, 92.} — "The Railway Act," R. S C. (1906), c. 37, does not confer power on the Board of Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or crosses a railway subject to the authority of the Parliament of Canada. Davies and Anglin, JJ., contra. — Per Fitzpatrick, C.J., and Girouard and Duff, J J. — The provisions of s.-s. (6) of s. 8 of the " Railway Act " are ultra vires of the Parliament of Canada. . Montreal Street Railway Co. v. City of Montreal, xliii., 197. 14. Construction of statute — B. N. A. Act, ss. 91, 92, 101 — " Supreme Court Act," R. S. C. (1906), c. 139, ss. S, 60— References ly Governor-General in Council — Opinions and advice — Jurisdiction of Parliament — In- dependence of judges— Judicial functions — Constitution of courts — Administration of the laws of Canada — Provincial legislative jurisdiction.'] — Per Fitzpatrick, C.J., and Davies, Duff and Anglin, JJ. — The provi- sions of s. 60 of the " Supreme Court Act," R. S. C. (1906), c. 139, are within the legislative jurisdiction of the Parliament of Canada. — Per Girouard and Idington, JJ. — The provisions of that section assuming to authorize references by the Governor-Gen- eral in Council to the judges of the Supreme Court of Canada for their opinions in re- .spect to matters within provincial legislative jurisdiction are ultra vires of the Parlia- ment of Canada ; but, if the governments of the Dominion and of a province unite in the submission of the questions so referred the judges of the Supreme Court of Canada should entertain the reference. — Per Iding- ton, J. — The administration of justice in each province having been assigned exclu- sively to it the power of Parliament in re- gard to the same is limited to creating a court of appeal and courts for the adminis- tration of the laws of Canada. — Per Iding- . ton, J. — 'Parliament has no power to auth- orize the interrogation of the Supreme Court of Canada except where the question sub- mitted relates to some subject or matter re- specting which it is competent for Parlia- ment to legislate and respecting which it has legislated and competently constituted judicial authority in that court to administer or aid in administering the laws so enacted. — Per Idington, J. — Quwre. As to the consti- tutionality of adopting a system of interroga- tions of the judiciary even when the ques- tions are confined to subjects of the kind thus indicated. Re References by the Gov- ernor-General in Council, xliii., 536. 15. " Marriage and Divorce " — " Solemni- zation of Marriage " — Jurisdiction of Par- liament — Jurisdiction of legislature — Federal validating Act — Religious belief — Canonical decrees — Civil rights — " B. N. A. Act " (186~), ss. 91 and 92— Arts. 121 et seq. G.CI — The Parliament of Canada has no authority to enact a bill in the following form : — 1. The " Marriage Act," c. 105 of the Revised Statutes, 1906, is amended by adding thereto the following section : — " 3. Every ceremony or form of marriage heretofore or hereafter performed by any person authorized to perform any ceremony of marriage by the laws of the place where it is performed, and duly performed accord- ing to such laws, shall everywhere within Canada be deemed to be a valid marriage, notwithstanding any dififerences in the reli- gious faith of the persons so married and without regard to the religion of the person performing the ceremony. (2) The rights and duties, as married people, of the respec- tive persons married as aforesaid, and of the children of such marriage, shall be absolute and complete, and no law or canonical de- cree or custom of or in any province of Can- ada shall have any force or effect to invali- date or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever." (Af- firmed by Privy Council, 29th July, 1912.) — Per Idington, J. — The retrospective part would be good as part of a scheme for con- current legislation by Parliament and legis- latures confirming past marriages which, probably, neither effectively can do. The prospective part, so far as possible to make it an effective prohibition of religious tests, may be good, but doubtful, and the pro- bable purpose can be reached by a better biU. — Per Davies, Idington and Duff, JJ. — The law of the Province of Quebec does not ren- der null and void, unless contracted before a Roman Catholic priest, a marriage in such' province between two Roman Catholics that would otherwise be binding. Anglin, J., contra. Fitzpatrick, C.J., expressing no opinion. — The law of Quebec does not render void, unless contracted before a Roman Ca- tholic priest, a marriage otherwise valid where one party only is a Roman Catholic. — The Parliament of Canada has no authority to enact that a marriage between Roman Catholics, or a " mixed marriage," not con- tracted before a Roman CatBolic priest and whether heretofore or hereafter solemnized, shall be valid and binding. (Affirmed by Privy Council, 29th July, 1912).— Per Id- ington, J. — Parliament has power to declare valid such a marriage heretofore solemnized to be concurred in by the legislature of the province concerned, and the like power as to a marriage hereafter to be solemnized if and when the province fails to provide ade- quate means of solemnization. In re Mar- riage Laws, xlvi., 132. 243 CONSTITUTIONAL LAW. «44 16. Provincial irannoay — Jurisdiction of Board of Raihcay Commissioners — High- ways — Overhead crossings — Apportionment of cost — Legislative jurisdiction — ■ Ancillary powers — " Interested parties " — Construc- tion of statute — " Railtoay Act," R. 8. C. woe, e. 37, ss. 8, 59, 237, 238— {B.C.) 8 & 9 Edw. VII., c. 32—" B. N. A. Act, 1867," s. 92, item 10.'] — On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to con- struct overhead bridges across the tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and or- dered that a portion of the cost of construc- tion of two of these bridges and of the de- pression of the tracks at the crossings there- of by the Dominion railway should be borne by a tramway company which derived its powers through provincial legislation and an agreement with the city pursuant to such legislation under which it operated its tram- ways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city and the company i-especting their grading, repair and maintenance, and it was provided that the city should receive a share of the gross earnings of the tramway com- pany. On appeal to the Supreme Court of Canada from the order of the Board : — Held, Duff and Brodeur, JJ., dissenting, that, in virtue of ss. 8 (a.1. 59, 237, and 238 of the "Railway Act," R. S. C. 1906, c. 37, as amended by c. 32 of 8 & 9 Edw. VII., the Board of Railway Commissioners for Canada had jurisdiction to determine the " interested parties " in respect of the proposed works and to direct what proportion of the cost thereof should be borne by each of them. The City of Toronto v. Canadian Pacific Railtoay Co. ((1908), A. C. 54) ; Canadian Pacific Railway Co. v. Parish of 'Notre Dame de Bonsecours ((1899), A. 0. 367); City of Toronto v. Grand Trunk Railway Co. (37 Can. S. C. R. 2321 ; County of Carleton v. City of Ottawa (41 Can. S. C. R. 552), and Re Canadian Pacific Railway Co. and York (25 Out. App. R. 65), (followed.— Per Duff and Brodeur. JJ., dissenting. — (1) The Par- liament of Canada, when it assumes juris- diction, under the provisions of item 10 of s. 93 of the " British North America Act, 1867," in respect of a provincial railway, quA railway, must assume such jurisdiction over the work or undertaking " as an in- tegei'." (2) The order of the Board cannot be sustained as being made in the exercise of the Dominion power of taxation. (3) As there is no Dominion interest concerned in the provisions of the order under appeal, and the Dominion Parliament has no power to compel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Rail- way Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company. (4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enact- ment professing to control a provincial rail- way company. — (Note. — Leave to appeal to the Privy Council was granted on 14th July, 1913.) British Columbia Electric Railway Co. V. Vancouver, Victoria Railii:ay Co xlviii., 98. 17. Insurance — Foreign company doing business in Canada — Dominion license — 9 £ 10 Edw. VII., oh. 32, ss. 4 and 70.]—Seli, per Fitzpatrick, C.J., and Davies, J., that ss. 4 and 70 of the Act 9 & 10 Edw. VII. c. 32 (the "Insurance Act, 1910") are not ultra vires of the Parliament of Canada. Idington, Duff, Anglin and Brodeur, JJ., contra. — Held, per Fitzpatrick, C.J., and Da- vies, J., that s. 4 of said Act operates to prohibit an insurance company incorporated by a foreign state from carrying on its busi- ness within Canada if it does not hold a license from the Minister under the said Act and if such a carrying on of the business is confined to a single province. — Per Idington, J. — Section 4 does not prohibit if, and so far as it may be possible to give any opera- tive effect to a clause bearing upon the alien foreign companies as well as others withm the terms of which is embraced so much that is clearly ultra vires. — Per Duff, Anglin and Brodeur, JJ. — The section would effect such prohibition if it were intra vires. Insurance Reference, xlviii., 260. 18. Incorporatiori of compa/nies — "Proviiv- cial objects " — Limitation — Doing business beyond the province — Insurance company— "Insurance Act, 1910"; 9 d 10 Edw. T77., c. 32, s. 3, s.-s. 3 — Enlargement of company's powers — Federal company — Provincial license — Trading companies.] — By s.-s. 11, s. 92, of " The British North America Act, 1867," the legislature of any province in Canada has exclusive jurisdiction for "The Incorporation of Companies with Provincial Objects." — Held, per Fitzpatrick. C.J., and Davies, J., that the limitation defined in the expression " Provincial Object^ " is terri- torial and also has regard to the character of the powers which may be conferred on companies locally incorporated. — Held, per Idington, Anglin and Brodeur. JJ., that such limitation is not territorial but has regard to the character of the powers only. — Per Duff, J. — Provincial objects means "objects" which are " provincial " in reference to the incorporating province. Whether the " ob- jects " of a particular company as defined by its constitution are or are not " provin- cial " in this sense is a question to be deter- mined on the facts of each particular case substantially as a question of fact. — Eeli, per Fitzpatrick, C.J.. and Davies, J., that a company incorporated by a provincial legis- lature has no power or capacity to do busi- ness outside of the limits of the incorporat- ing province but it may contract with parties residing outside those limits as to matters ancillary to the exercise of its powers. — Per Idington and Brodeur. JJ. — Such company has, inherently, unless prohibited by its cha^ ter, the capacity to carry on the business for which it was created, in any foreign state or province whose laws permit it to do so. — Per Duff, J. — A provincial company may conduct its operations outside the limits of the pro- vince creating it so long as its business as a whole remains provincial with reference to its province of origin. — Per Anglin, J.-^Sucb a company has. Inherently, unless prohibited by its charter, the capacity to accept the authorization of any foreign state or pro- vince to carry on within its territory the 245 COXSTITUTIOXAL LAW. 246 business for which it was created. — Seld, per Fitzpatrick, C.J., and Davies, J., that a corporation constituted by a provincial legis- lature with power to carry on a fire insur- ance business with no express limitation as .to locality has no power or capacity to make and execute contracts for insurance outside of the incorporating province or for insuring property situate outside thereof. — Per Iding- ton, Anglin and Brodeur, JJ. — Such a com- pany has power to insure property situate within or without the incorporating province and to make contracts within or without the same to effect any such insurance. In re- spect to all such contracts it is not material whether the owner of the property insured is, or is not, a citizen or resident of the in- corporating province. — Per Duff, J. — It is not necessarily incompatible with the pro- vincial character of the "objects" of a pro- vincial insurance company that it should have power to enter into outside the pro- vince contracts insuring property outside the province. — Seld, per Fitzpatrick, C.J. — A provincial fire insurance company may make contracts and insure property throughout Canada by availing itself of the provisions of s. 3, S.-S. 3, of 9 & 10 Edw. VII., c. 32 ("The Insurance Act, 1910"), which is intra vires of the Parliament of Canada. Davies, J., contra. — Per Davles, J. — That such enactment is ultra vires so far as the provinces of the Dominion are affected. — Per Brodeur, J. — Such enactment is ultra vires of Parliament. — Per Idingtou, J. — Part of said sub-section may be intra vires but the last part providing for a Dominion license to local companies is not. — Per Anglin, J. — The said enactment is ultra vires except in so far as it deals with companies incorpo- rated by or under Acts of the legislature of the late Province of Canada. — Held, that the powers of a company Incorporated by a pro- vincial legislature cannot be enlarged either as to locality or objects, by the Dominion Parliament nor by the legislature of another province. — Held, per Fitzpatrick, C.J., and Davies, J. — The legislature of a province has no power to prohibit companies incorporated by the Parliament of Canada from carrying on business within the province without ob- taining a license so to do from the provincial authorities and paying fees therefor unless such license is imposed in exercise of the taxing power of the province. And only in the same way can the legislature restrict a company incorporated for the purpose of trading throughout the Dominion in the ex- ercise of its special trading powers or limit the exercise of such powers within the pro- vince. Brodeur, J., contra. — Per Idington, .1. — A company incorporated by the Domin- ion Parliament in carrying out any of the enumerated powers contained in s. 91 can- not be prohibited by a provincial legislature from carrying on business, or restricted in the exercise of its powers, within the pro- vince, though subject to exercise of the exclu- sive jurisdiction to make laws in relation to " direct taxation within the province." But a company incorporated under the gen- eral powers of parliament must conform to all the duly enacted laws of a province in which it seeks to do business. — Per Duff, J. — A company incorporated under the resi- duary legislative power of the Dominion is not in any province where it carries on busi- ness subject to the legislative authority of the province in relation to matters falling within the subject " incorporation of com- panies ;" but as regards all other matters falling within the enumerated subjects of s. 92 it is subject to such legislative juris- diction just as a natural person or an unin- corporated association would be in like cir- cumstances. The enactments of ss. 139, 152, 167 and. 168 of the British Columbia " Com- panies Act " are valid. — Per Anglin, J. — The provincial legislature may impose a license and exact fees from any Dominion company if the object be the raising of revenue, or obtaining of information, " for provincial, local or municipal purposes," but not if it is to require the company to obtain provin- cial sanction or authority for the exercise of its corporate powers. And the legislature cannot restrict a company incorporated for the purpose of trading throughout the Do- minion in the exercise of its special powers nor limit the exercise of such powers within the province, nor subject such company to legislation limiting the nature or kind of business which corporations not incorporated by it may carry on or the powers which they may exercise within the province. Re Incorporation of Companies, xlviii., 331. 2. Ontaeio Acts. 19. Provincial mining company — Power to do mining outside of province — Incorpora- tion " with pro vincial objects " — Territorial limitation — Comity.'] — A mining company in- corporated under the law of the Province of . Ontario has no power or capacity to carry on its business in the Yukon Territory and an assignment to it of mining leases and agreements for leases is void. Idington and Anglin, JJ., contra. — Held, per Fitzpatrick, C.J., and Davies, J., that " the incorporation of companies with provincial objects " as to which the provinces are given exclusive juris- diction ("B. N. A. Act," 1867, s. 92, s.-s. 11), authorizes the incorporation of com- panies whose operations are confined, terri- torially, to the limits of the incorporating province. — Per Idington and Anglin, JJ. — Such company has capacity to avail itself of the sanction of any competent authority out- side Ontario to operate within its jurisdic- tion. — Per Duff, J. — The term " provincial objects " in said sub-section means provincial with respect to the incorporating province, and the business of mining in the Yukon Is not an object " provincial " with respect to Ontario. The question whether capacity to enter into a given transaction is compatible with the limitation that the objects shall be " provincial objects " Is one to be determined on the particular facts. — Also, per Duff, J. — On the true construction of the Ontario " Companies Act," the appellant company only acquired capacity to carry on Its busi- ness as an Ontario business ; and there was no legislation by the Dominion or the Yukon professing to enlarge that capacity. — Held, per Fitzpatrick, C.J. (Duff and Anglin, JJ., contra) , that to enable a joint stock com- pany to obtain a free miner's certificate un- der the regulations in force in the Yukon Territory it must be authorized by an Act of the Parliament of Canada, and at present only a British or foreign company could be so authorized (61 Vict. c. 49, s. 1 (D.)). 247 CONSTITUTIONAL LAW. 248 Bonanza Greek Oold Mining Go. v. The King, 1., 534. 20. Ganadian waters — Sea coasts — Pro- perty in foreshores — JSariours — Havens — Roadsteads — Ownership of teds — Construc- tion of statute — '' B. 2V. A. Act, 1861," ss. 108, 109.] — The terms " public harbours " in item 2 of the third schedule of the " British North America Act, 1867," is not intended to describe or include portions of the sea coast of Canada having merely a neutral con- formation which may render them suscep- tible of use as harbours for shipping ; such potential harbours or havens of refuge are not property of the class transferred to the Dominion of Canada by s. 108 of the " Brit- ish North America Act, 1867." The term used refers only to public harbours existing as such at the time when the provinces be- came part of the Dominion of Canada. — Per Davies, Idington, Anglln and Brodeur, JJ. — As that part of Burrard Inlet, on the coast of British Columbia, known as " English Bay," was not in use as a tarbour at the time of the admission of British Columbia into the Dominion of Canada, in 1871, it did not become the property of the Domin- ion as a " public harbour " within the mean- ing of s. 108 and the third schedule of the " British North America Act, 1867 :" conse- quently, the Province of British Columbia retained the property in the bed and fore- shore thereof and could validly grant the right of removing sand therefrom. — Per Da- vies, Idington and Anglin, JJ. — Inasmuch as the proclamation, by the Dominion Gov- ernment, on the 3rd December, 1912, and the Dominion statute, c. 54 of 3 & 4 Geo. v., deal merely with the establishment of the port and the incorporation of the Van- couver Harbour Commissioners, ttey had not the effect of transferring English Bay from the control of the Provincial Govern- ment to that of the Dominion Government nor of giving to the Dominion Government any right of property in the bed or fore- shore of that bay. — Per Duff, J. — The trans- fer effected by s. 108 of the " British North America Act, 1867," of the subjects described in the third schedule of that Act was a transfer of property operative upon the passing of the Act and such subjects were necessarily ascertainable at th« passing of the Act by the application of the descrip- tions to the facts then existing, and, conse- quently, the question of " public harbour " or no " public harbour " must be determined according to the circumstances as they were at the date of the Union. — Per Duff, J. — The term " public harbour " implies public user as a harbour for commercial purposes as distinguished from purposes of naviga- tion simply, or some recognition, formal or otherwise, of the locality in dispute by the proper public authority as a harbour for such purposes, but the question of " public harbour " or no " public harbour " is a ques- tion of fact depending largely upon the par- ticular circumstances.- — Per Duff, J. — If the question of " public harbour " or no " public harbour " were to be decided according to the circumstances existing when the dispute arose, English Bay must be held to be now a "public harbour" within the meaning of item 2 of the third schedule of the " British North America Act, 1867." — ^Judgment ap- pealed from (20 B. C. Kep. 333). affirmed. Attorney-General for Canada v. Ritchie Con- tracting & Supply Co., lii., 78. 21. Copyright — Foreign reprints — Tfotice to English Commissioner of Customs — Entry at Stationers' Sail — Imperial Acts in force in Canada.'i — The judgment appealed from (8 Ont. Xi. R. 9) was affirmed, the court, however, declining to decide whether or not the doctrine laid down in Smiles v. Bedford (1 Ont. App. R. 436), was rightly decided. (Leave to appeal to Privy Council refused; May, 1905). Imperial Book Co. v. Black XXXV., 488. ' 22. Sunday observance — Reference to Su- preme Court — R. S. C. c. 135, s. 31/— 54 dc 55 Vict. c. $5, s. Jf — Legislative jurisdic- tion.'] — ^The statute 54 and 55 Vict. c. 25, s. 4, does not empower the Governor-General in Council to refer to the Supreme Court for hearing and consideration supposed or hypothetical legislation which the legislature of a province might enact in the future. Sedgewick, J., dissenting. — The said section provides that the Governor in Council may refer important questions of law or lact touching specified subjects " or touching any other matter with reference to which he sees fit to exercise this power." — Held, Sedge- wick, J., contra, that such " other matter " must be ejusdem generis with the subjects specified. — Legislation to prohibit on Simday the performance of work and labour, trans- action of business, engaging in sport for gain or keeping open places of entertainment is within the jurisdiction of the Parliament of Canada. Attorney-General for Ontario v. Hamilton Street Railway Go. ( [1903] A. C. 524), followed. — (Leave to appeal to Privy Council refused, 26th July, 1905.) In re Legislation respecting Abstention from La- bour on Sunday, xxxv., 581. 23. Provincial companies' powers — Opera- tions beyond province — Insurance against fire — Property insured — Standing timbers- Return of premiums — B. N. A. Act, 1867, s. 92 (11).] — Held, per Idington, Maclen- nan and Duff, JJ., Fitzpatrick, C.J., and Davies, J., contra: — That a company inco^ porated under the authority of a provincial legislature to carry on the business of fire insurance is not inherently incapable of en- tering outside the boundaries of its province of origin into a valid contract of insurance relating to property also outside of those ■limits. — Per Fitzpatrick, C.J., and Davies, J.— S'ub-section 11 of s. 91, B. N. A. Act, 1867, empowering a legislature to incorpo^ ate " companies for provincial objects," not only creates a limitation as to the objects of a company so incorporated but confines its operations within the geographical area of the province creating it. And the pos- session by the company of a license from the Dominion Government under 51 Vict, c. 28 (R. S. C. 1906, c. 34, s. 4), autho^ izing it to do business throughout Canada is of no avail for the purpose. — Girouard, X, expressed no opinion on this question. Can- adian Pacific Ry. Co., v. Ottawa Fire Ins- Co., xxxix., 405.' 3. Quebec Acts. 24. Legislative jurisdiction — " Early elxis- ing by-law" — Municipal corporrine and General Ins. Co. ( [1901] 2 K. B. 861) and Michael v. Mart & Co. ([1902] 1 K. B. 482) followed. McNeil V. Fultz, xxxviii., 198. 4. Account — Statute of lintitations — Agents or partners — Reference. i — By agreement between them, the Hamilton Brass Mfg. Co. was appointed agent of the Barr Cash Co. for sale and lease of its carriers in Canada at a price named for manufacture ; net profits to be equally divided and quarterly returns to be fur- nished, either party having liberty to annul the contract for uon-fullilment of condi- tions. The agreement was in force for three years when the Barr Co. sued for an account, alleging failure to make proper returns and payments : ^- iJeW, reversing the judgment of the Court of Appeal, Girouard and Da- vies, JJ., dissentmg, that the accounts should be taken for the six years preceding the action only. Hamilton Brass Manufac- turing Co. v. Barr Cash and Package Car- rier Co., xxxviii., 216. And see Peactice. 5. Breaich of contract — Conspiracy — Fraud — Assessment of damages.^ — In an action for the price of pills manufactured according to a special formula, supplied by defendants, under a contract with a condi- tion that the formula should not be used or sold to persons other than defendants, the' defendants denied liability and counter- claimed for damages for breach of this con- dition and conspiracy by the plaintiffs with persons who had infringed their trade-mark and injured their business. The action was maintained in part, without costs, and the incidental demand sustained in respect to damages for loss of profits through sales of the pills to others, and expenses of obtain- ing evidence as to the breach of contract, with costs, but the counterclaim was disal- lowed in respect to other expenses in the prosecution of the conspirators ; it was also found that the plaintiffs had not partici- pated in the conspiracy. On an appeal from the judgment of the Court of King's Bench, affirming this decision, the majority of the judges of the Supreme Court upheld the de- cision, Davles and Maclennan, JJ., dissent- ing, in respect to the damages allowed for the loss of profits in consequence of the sale of pills in breach of the contract. Wampole V. Simard, xxxix., 160. 6. Breach of contract —r Measure of dam- ages — Notice of special circumstances — Col- lateral enterprises — Loss of primary and secondary pro/its — Costs.] — The plaintiffs sold defendant a boiler to be used in a' mill to be set up in connection with his lumber- ing operations and guaranteed its efficiency for that purpose. When delivered, it proved inefficient, and, while necessary alterations and repairs were being made, two months elapsed during which the defendant was deprived of the use of his mill, was obliged to keep a gang of men idle and under ex- pense for wages and board, and, in unsuc- cessfully attempting to carry on his opera- tions, temporarily hired another boiler. On being sued for the price of the boiler, the de- fendant counterclaimed for damages and, at the trial, was awarded $427.11, being $277.11 for wages, board and expenses incurred in consequence of the failure of the boiler tu satisfy the guarantee, and also $150 for damages for the " loss of the use of the mil)." By the judgment appealed from the first item for wages, etc., was rejected, and the item for " loss of the use of the mill " only allowed : — Held, per Fitzpatrick, C.J., and Davies and Maclennan, JJ. (Idington[ J., contra), that, as the loss of primary i)ro- fits directly resulting from the breach of the contract only should have been allowed, the item of $150 for loss of anticipated pro- fits should be rejected as being merely secondary, speculative and uncertain ; but that the item assessed by the trial judge iu respect of the wages, board and other ex- penses should be allowed, as they were direct and immediate results of such breach.— Duff, J., was of opinion that the appeal should be allowed and the judgment by the trial judge restored. — The judgment ap- pealed from was reversed ' with costs, and the judgment at the trial restored to the extent of $277.11, but, in the special circum- stances of the case, no costs were allowed in respect of the appeal to the court below. Corhin v. Thompson, xxxix., 575. 7. Share of profits — Absolute or coiwii- tional undertwking — Constructing of con- tract — Damages.! — A contract between W. and B. recited that W. owned land to be worked as a gravel-pit; that he was about to enter into contracts for supplying sand therefrom ; and that he had requested B. to assist him financially to which B. had con- sented on certain conditions; it then pro- vided that " the said W. is to enter into contracts as follows," naming five corpora- tions and persons to whom he would supply sand to a large amount at a minimum price per yard ; that B. would indorse W.'s note to the extent of $5,000 and have 60 days to declare his option to take a one-fourth in- terest in the profits from said contracts, or purchase a one-third interest in the pro- perty and business ; that each party would account to the other for moneys received and expended in connection with the pro- perty : that if either party wished to sell his interest he would give the other the first choice of purchase; and that "each of'tlie parties hereto agrees to carry out this agree- ment to the best of his ability according to the true intent and meaning of the same, and to do what he can of mutual benefit to the parties hereto." B. indorsed notes as agreed. W. entered into two of the five contracts, sold a quantity of sand and then sold the property, without notice to B., who brought an action claimiDg his share of tlie profits that wouM have been earned if tbe five contracts had be«i entered into ami 265 CONTEACT. 266 fully carried out. — Held, Fitzpatriek, C.J., and Maclennan, J., dissenting, that the undertaking by W. to enter into the five contracts was absolute and having by the sale put it out of his power to perform it he was liable to B., who was entitled to damages on the basis of the contracts hav- ing been carried out. — Held, also, Duff, J., liesitante, that the clause quoted did not modify the rigour of the absolute covenant by W. to procure these contracts in any event, — Judgment of the Court of Appeal (10 Ont. W. R. 732) reversed, and the judgment of the Divisional Court (9 Ont. W. .R. 48) reversing that of AngUn, J. (8 Ont. W. R. 4) restored. Battle v. Wil- low, xl., 198. 8. Waterworks — Statutory contract — B^- clusice franchise — Condition of defeasance — Forfeiture of monopoly — Demurrer — Right of action hy municipality — Rescission — Art 1065 0. G.—40 Vict. c. 88 (Q«e.).]— By the Quebec statute, 40 Vict. c. 68, Louis MoUeur and others, now represented by the defendants, were substituted as sole owners of the waterworks of St. John's in the place of " The Waterworks Co. of St. John's," incorporated under R. S. C. (1859) c. 65, charged with all the obligations and respon- sibilities of said company, and, by the said Act, 40 Vict. e. 68, the new proprietors were granted the exclusive right and privilege of placing pipes or wa'ter conduits under the streets and squares of the Town of Saint John's (now the City of St. John's, the appellant), under certain other conditions and obligations in the last mentioned stat- ute recited, and the monopoly created was, by s. 3, liable to be forfeited in case of neglect or refusal in discharging the obliga- tions thereby imposed. — Held, that the con- tract existing between the parties, in virtue of the above recited statutes, was liable to rescission under the provisions of the 1065th article of the Civil Code of Lower Canada, upon default in the specific per- formance by the defendants of the obliga- tions thereby imposed, and that, upon proof of default in the specific performance of any of the said obligations, the municipal cor- poration was entitled to maintain an action ill its corporafe capacity to have the exclu- sive right and privilege granted by the stat- ute declared forfeited, surrendered and an- nulled, without the necessity of joining in such action a demand for the rescission of the contract or for damages. — ^The judg- ment appealed from (Q. R. 16 K. B. 559) deciding that the. action would lie only for breach of obligations expressly declared to involve forfeiture, was reversed, Davies, J., dissenting. Ville de St. Jean v. Molleur, xl., 629. 9. Contract of sale — Particular chattel — Representation.'] — The plaintiffs were manu- facturers of billiard tables at Toronto, and the defendants resided at Autigonish, Nova Scotia. The cause of action arose witb in- spect to a contract entered into between them for the exchange of billiard tables. The defendants having previously purchased through an agent at a sale at auction held at Halifax, a billiard table of a size too large for them, which the defendants never had personally seen, opened negotiations with the plaintiffs by letter for an exchange. To this plaintiffs replied giving their terms, which the defendants by post-card refused to accept. Subsequently the plaintiffs re- opened negotiations and asked defendants to give as near a description of their table as they could, to which M., acting for both de- fendants, replied : " I may just say I never saw our table yet, but am informed it is a very nice one, etc.. The gentleman who pur- chased the table for us writes thus : ' I am told that the table is a great bargain, cost £200 in England, etc' The table is 6 x 12, and for particulars we would refer you to Jerry F. Kenny, Esquire, of F. D. Clarke, auctioneer, Halifax." To this plaintiffs re- plied accepting the offer, adding : " We trust that the English table is fully as repre- sented." The tables were sent to their re-^ spective destinations. On receipt of the de- fendants' table, the plaintiffs wrote refusing to accept it on the ground that the table received was an old, out-of-date, American table, and claiming that they had been de- frauded in the matter by the defendants. The latter replied, saying, " I complied with the conditions of our bargain. I referred you at the time to Mr. Kenny and the auctioneer, and gave you the information I had about the table which you took in ex- change for the one sent me. I acted in good faitb." The trial judge found in fa- vour of the plaintiffs, but his judgment was reversed by the full court, and the action dismissed, McDonald, C..T., dissenting. On appeal to the Supreme Court of Canada. — Held, reversing the judgment of the court below and restoring the judgment at the trial, that JIcD. agreed to deliver to M. & Co. an English built table made by Thurston as described in his letter and having failed to deliver such a table he was liable to pay the full price of the one obtained from M. & Co. May £ Co. v. ilcDoiigall (xviii., 700), Cam. Cas. 449. 10. Agreement for sale of land — Deferred conveyance — Default in payment — Remedy of vendor — Reading "or" as "and."] — Where, in accepting an offer by V. for the sale of land, C. undertook to pay certain in- stalments of the purchase money before re- ceiving the deed V. could sue for recovery of unpaid instalments, his remedy not being confined to an action in damages for breach of contract. Laird v. Pirn (7 M. & W. 474) , distinguished. — The offer having been ac- cepted by C. for " myself or assigns," to avoid holding the contract void for uncer- tainty as to the purchaser's identity, the word " or "' was read as " and." Idington, J., dissenting, on this point. Judgment of the Court of Appeal (16 Ont. L. R. 372), maintaining that of a Divisional Court (15 Ont. L. R. 280), affirmed. Clergue v. Viviafi c6 Co., xll., 607. 11. Contract — Right to assign — Contract- ing firm becoming incorporated company — Noration — Breach of contract — Damages.] — On appeal from the judgment of the Court of Appeal for British Columbia, 15 B. C. Rep. 225, dismissing an appeal, Irving, J., dissenting, from the judgment of Clement, J., at the trial, by which the plaintiffs' (re- spondents') action for damages for breach of contract was maintained with costs and the counterclaim of the defendants (appel- 267 COJs'TBACT. 268 Jants) was dismissed with costs, the appeal was dismissed with costs. Canadian Pacific ■Lumber Go. v. Paterson Timber Co. et al., xlvii., 398. 12. Construction of building — Work and materials — Faulty work — Extras — Dismis- sal. Metallic Roofing Co. v. City of Toronto, xxsvii., 692. 13. Shipping — Time limit for loading — Custom — Charter, xxxiv., 578. See Ships and Shipping. 14. Subaqueous mining — Grown grants — Dredging lease — Breach of contract — Sub- sequent issue of placer mining licenses — Damages — Pleading and practice — State- ment of claim ■ — ■ Demurrer — Cause of ac- tion, xxxviii., 542. See Mines and Mining. 15. Landlord and tenant — 'Negligence — Master and servant — Acts in course of em- ployment — Alterations in plumbing — Dam- age by steam, etc. — Responsibility of con- tractors — Control of premises — Cross-appeal between respondents — Practice, xxxix., 265. See Landlord and Tenant. 16. Negligence — Electrio lighting — Dan- gerous currents — Trespass — Breach of con- tract — Surreptitious installations — Liability for damages, xxxix., 326. gee Negligence. 17. Admiralty law ■ — Jurisdiction of the Exclieqiicr Court of Canada — Claim under mortgage on ship — Action in rem — Pleading — Abatement of contract price — Defects in construction — Damages, xl., 418. See Ships and Shipping. 18. Construction of contract — Traffic agreement — Furnishing cargoes — Freight rates — Failure to find full cargoes — Vis ma- jor — Damages. Great Northern Railway Co. V. Furness, Withy & Co., xlii., 234. 19. Breach of contract — Place of perform- ance — Foreign judgment — Action. Canada Wood Specialty Co. v. Morit:., xlii., 237. 20. Insolvent company — Sale of assets by liquidator — Sale " free from incumbrances " — Conversion — Breach of contract — Domin- ion Linen Co. v. Langley. xlvi., 633. 21. Watercourses — Driving timber — " Damages resulting " — Reparation — Ripa- rian rights — Construction of statute — Arts. 129S, 7349 R. S. Q. 1909— Servitude— Injury caused by independent contractor — Liability of ou'ner of timber. Dumont v. Eraser, xlriii., 137. See Rivers and Stkeaiis. 2. Cakeieks. 22. Shipping — Time limit for loading — Loading at port — Custom — Obligation of chartercv.'i — A ship, by the terms of the charter, was to load grain at Fort William before noon of December 5th : — Held, per Taschereau, C.J.. and Davies. J. (Girouard and Nesbitt, JJ.. dissenting), that to load at Fort William meant to load at the elevator there ; that the obligation of the ship-owner was to have the vessel placed under the elevator in time to be loaded before the ex- piration of the time limit ; and where, find- ing several vessels ahead of Mm, the captain saw that he could not be loaded by the time fixed, and left ito save insurance, the obliga- tion was not fulfilled and the owner could not recover damages. — Per Killam, ,T. : — The contract would have been fulfilled if the ves- sel had arrived at Fort William in time to load under the conditions which might be supposed to exist on arrival.^ Judgment ap- pealed from (6 Ont. L. R. 432), affirmed. (Leave to appeal refused by Privy Council, July, 1904.) Midland Navigation Co. v. Do- minion Elevator Co., xxxiv., 578. 23. Street railway ■ — Carriage of passen- gers — Contract — Continuous passage.} — ^The plaintiff wished to proceed to a certain part of Halifaix and, when a car come along labelled as going in the required direction, boarded a 'trailer attached to it which, how- ever, was not so labelled. There was an un- usual amount of travel on the street cars that (lay and when the car containing plain- tiff had proceeded a certain distance it was stopped and the passengers informed that it would not go farther in that direction. The plaintiff insisted on his right to be carried to bis destination in that car, refused a trans- fer and hired a cab. In an action for dam- ages, the courts below held (38 N. 'S. Rep. 212), that there was no obligation on the company's part to carry plaintiff to his des- tination on that particular car, that it was his duty to inquire of the conductor and as- certain where siich car was going, and he could not recover. This judgment was af- firmed. Idington, J., dissenting. O'Connor V. Halifax Tramway Co., xxxvii., 523. 24. Railways — Carriage of passenger — Special contract — Notice to passenger of con- ditions — Negligence — Exemption from lia- bility.'] — P., at Milverton, Ont., purchased a horse for a man in another town who sent R. to take charge of it. P. signed the way- bill in the form approved by the Board of Railway Commissioners, which contained a clause providing that if the consignee or his nominee should be allowed to travel at less than the regular fare to take care of the pro- perty the company should not be liable for any injury to him whether caused by negli- gence or otherwise. R. was not asked to sign the way-bill though a form indorsed provided for his signa'ture and required the agent to obtain it. The way-bill was given to R., who placed it in his pocket without examining it. On the passage he was in- jured by negligence of the company's ser- vants : — Held, that R. was not awafe that the way-bill contained conditions. — BeU, also, Fitzpatrick, C.J., dissenting, that the company had not done all that was incumb- " ent on them to bring notice of the special condition to his attention. — Judgment of the Court of Appeal (27 Ont. L. R. 290), re- versed and that of the trial judge (26 Ont. L. R. 437), restored. Robinson V. Grand Trunk Raihcay Company, xlvii., 622. 25. Railways — Shipping — Carrying per- son in charge of live stock — Free pass — B^ lease from liability — Approved form — Negli- 269 CONTEACT. 270 gence — Action hy dependents — Confliot of laws—" Railway Act." R. 8. C, 1906, c. S7, s. 340.] — ^The shipping- bill for live stock, to be carried from Manitoba to its destination in the province of Quebec, was in a form ap- proved by the Board of Railway Commis- sioners and provided that, if the person in charge of the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or injury whether caused by the negli- gence of the company or of its servants. C. travelled by the train in charge of the stock upon a " Live-Stock Transportation Pass " and signed conditions indorsed in English thereon by which he assumed all risks of in- jury and released the company from liability for damages to person or property while travelling on the pass, whether caused by negligence or otherwise. While the train was passing through the Province of On- tario, an accident happened through the negligence of the company's employees and C. was killed. In an action by his depend- ents, instituted in the Province of Quebec, it was shewn that C. could neither read nor write, except to sign his name, and that he only understood enough English to compre- hend orders in respect of his occupation as a stock-man : there was no evidence that the nature of the conditions was explained to him: — Held (iPitzpatrick, C.J., dissent- ing), that the railway company was liable for damages in the action by the dependents. —Per Davies, Idington, , Duff and Brodeur, JJ. (Fitzpatrick, C.J. and Anglin, J., contra), that, as C. could not have known ,the nature of the conditions or that they released the company from liability, and the company had not done what was reason- ably sufficient to give him notice of the con- ditions on which he was being carried, the company waa liable in damages either under the law of Ontario or that of Quebec. — Per Anglin, J. — Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an action would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie, though the wrongful act had been committed in Ontario, as it was of a class actionable in Ontario. Ma- chado v. Pontes ( (1897) 2 Q. B. 231) ap- plied. — Section 340 of the " Railway Act," R. S. C. 1906, c. 37, provides that " no con- tract, condition, .... or notice made 01- given by the company impairing, restrict- ing or limiting its liability in respect of the carriage of any traffic shall . . . relieve the company from such liability unless such class of contract . . . shall have been first authorized or approved by order or re- gulation of the Board. (2) The Board may, in any case or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited." The Board of Railway Commissioners made an interim order permitting the use by the company, until otherwise determined, of the shipping form used, but did not expressly authorize the form containing the conditions signed by deceased. — Held, per Fitzpatrick, C.J., and Davies and Anglin, J J. (Idington, Duff and Brodeur, JJ., contra) , that the con- tract signed by deceased was one of a class of contracts authorized by the Board. — Per Duff, J. — The contract signed hy deceased could not have the effect of limiting the lia- bility of the company in respect of death because it was not in a fonn authorized or approved by the Board of Railway Commis- sioners and there had been no order or regulation made by the Board expressly de- termining the extent to which the company's liability should be impaired, restricted or limited as provided by sub-section 2 of sec- tion 340 of the "Railway Act." — Judgment appealed from, affirming the judsment of the Superio'r Court (Q. R. 46 f. r. refused to deliver logs that had been on the ground one month without previous 273 CONTEACT. 274 payment, and P. brought an action for speci- fic performance and damages, claiming that he could not be called upon to pay until the poles were inspected and passed by him, and also that M. sKould supply the cars. M. counterclaimed for the price of the poles. — Held, Sedgewick and Killam, .TJ., dissent- ing, that each party had misconceived his rights under the contract, and no judgment could be rendered for either. Phelps v. MoLachlin, sxxv., 482. 36. Railways — Branch lines — Canadian Pacific Railway Go's charter — Jilf Vict. c. 1 (D) and schedules — Construction of con- tract- — Limitation of time — Interpretation of terms — " Lay out," " Construct," "Ac- quire " — " Territory of Dominion " — San- sard debates — Construction of statute — "The Railway Act, 1903."} — The charter of the Canadian Pacific Railway Company (44 Vict. c. 1 (D.) and schedules thereto appended), imposes limitations neither as to time nor point of departure in respect of the construction of branch lines ; they may be constructed from any point of the main line of the Canadian Pacific Railway be- tween Callender Station and the Pacific sea- board, subject merely to the existing regula- tions as to approval of location, plans, etc., and without the necessity of any further legislation. — On a reference concerning an application to the Board of Railway Com- missioners for Canada for the approval of deviations from plans of a proposed branch line under s. 43 of " The Railway Act, 1903," it is competent for objections as to the expiration of limitation of time to be taken by the said Board, of its own mo- tion, or by any interested party. In re Branch Lines; Canadian Pacific Railway, xxxvi., 42. 37. Patent of invention — Infringement of patent — Sale for a reasonable price — Use of patented device — " Patent Act," R. S. C. c. 61, s. 37 — Evidence.'] — The patentee of a device for binding loose sheets sold the de- fendant H. binders subject to the condition that they should be used only in connecting sheets supplied by or under the authority of the patentee. H. used the binders with sheets obtained from the other defendants, contrary to the condition. In an action for infringement of the patent: — Held, that the condition in the contract with H. imposing the restriction upon the manner in which he should use the binders was not a contraven- tion of the provisions of s. 37 of the " Pat- ent Act," R. S. C. c. 61, in respect to sup- plying the patented invention at a reason- able price to persons desiring to use it, and that the use so made of the binders by H. was in breach of the condition of the con- tract licensing him to make use of the pat- ented device and an infringement of the patent. Judgment appealed from (10 Ex. C. R. 224) affirmed. Hatton v. Copeland- Chatterson Co., xxsvii., 651. 38. Construction of contract — Sale of ma- chinery — Agreement for lien — Delivery.] — The company sold R. an entire outfit of second-hand threshing machinery, for Sl.OOO, taking from him three so-called pro- missory notes for the entire price. Two days before giving the notes, R. had signed an agreement setting out the bargain, in which the following provisions appeared — "And for the purpose of further securing payment of the price of the said machinery and interest . . . the purchaser agrees to deliver to the vendor, at the time of the delivery of the said machinery as herein provided or upon demand, a mortgage on the said lands (i.e., lands described at the foot of the agreement), in the statutory form containing also the special covenants and provisions in the mortgages usually taken by the vendors. And the purchaser hereby further agrees with the said vendors that the vendors shall have a charge and a specific lien for the amount of the purchase money and interest, or the said amount of the purchase price, less the amount realized, etc., should the vendors take and resell the said machinery . . . and any other land the purchaser now owns or shall hereafter own or be interested in, until the said purchase money and all costs, charges, damages and expenses, and any and all notes or renewals thereof, shall have been fully paid, and the said lands are hereby charged with the pay- ment of the said purchase money, obliga- tions, notes and all renewals thereof, and interest and all costs, charges, damages and expense as herein provided, and, for the purpose of securing the same, the purchaser hereby grants to the vendors the said lands . . . And, on default, all moneys hereby secured shall at once become due, and all powers and other remedies hereby given shall be enforceable." In an action to re- cover the amount of the notes past due and to have a decree for a lien and charge upon the lands therefor under the agreement. — Held, reversing the judgment appealed from, that the right of the company to en- force the lien depended upon -the interpreta- tion of the whole contract ; that the provi- sion as to lien only became operative in the case of a complete delivery pursuant to the contract, and that the alternative words " or upon demand " must be taken as meaning upon a demand made after such complete delivery. Rustin v. Fairchild, xxxix., 274. 39. Insurance — Sprinkler system — Dam- age from leakage or discharge — Injury from frost — Application — Interim receipt.] — A policy of insurance covered loss by leakage or discharge from a sprinkler system for protection against fire, but provided that it would not cover injury resulting, inter alia, from freezing. The water in a pipe con- nected with the system froze and. the pipe having burst, damage was caused by the con- sequent escape of water : — Held, aflirming the judgment of the Court of Appeal (14 Ont. L. R. 166), Davies, J., dissenting, that the damage did not result from freezing and the Insured could recover on the policy. — In the Hawthorne case, the majority of the court dismissed the appeal on the same grounds. The policy in that case was sent to the brokers, who had applied for it on behalf of the assured shortly before, and the latter did not see it until the loss 'oc- curred. — Held, per Davies, J., that the con- tract of insurance was not contained in the policy, which the assured had no opportun- ity to accept, but in what took place be- tween the brokers and the agent of the in- surers on applying for it and, as the latter 27« CONTEACT. 276 informetl the brokers that damage by frost was msured against, the insured could re- cover. GarMdian Casualty and Boiler Ins. Co. V. Boulter, Davies <£ Co., and Haw- thorne £ Co., xxxix., 558. 40. Supply of electric light — Cancellation of contr(tct — Condition for terminating ser- vice — Interest in premises ceasing — "Seirs" — "Assigns."'] — The electric company and S. entered into an agreement for the supply of electric lighting in a hotel for ten years from 1st May, 1902, and it was provided that either party might cancel the agree- ment by notice in writing, if, after the ex- piration of five years, neither S. nor his heirs, executors, administrators or assigns should be owner, tenant or occupier of the hotel, alone or with other persons. The lease to S. extended only until 1st May, 1907; it gave him no right to a renewal, and he had no other interest in the building. He sold a half interest in the lease to two persons with whom he formed a partnership in the hotel business, which was carried on till 1904, when the partnership terminated by his death, ^nd the defendants were ap- pointed administrators of his intestate es- tate.. The affairs of the partnership were settled between the defendants and the sur- viving partners who became transferees of the business, exclusive owners of the lease and sole occupants of the hotel for the un- expired term. The defendants gave notice to the plaintiffs to cancel the agreement on 1st May, 1907, and, on that date, the sur- viving partners obtained a new lease of the premises under which they continued in oc- cupation and possession. — Held, that, after 1st May, 1907, the new tenants of the hotel were not assigns of S. and, consequently, the defendants were entitled to cancel the agreement for electric lighting by notice ac- cording to the proviso. DescMnes Electric Co. V. Royal Trust Co., xxxix., 567. 41. Sale of shares — Resohitive condition — Hypothecary security — Construction of contract — Rescission.] — By the judgment appealed from' (Q. B. 18 K. B. 63), affirm- ing the judgment of the Superior Court (Q. R. 30 S. C. 56), it was held that the acceptance of a proposal to purchase shares in a joint stock company for a price payable half in bonds and half in the stock of a new company to be formed to take over the busi- ness of the first mentioned company, on condition that the shares so sold should be deposited in trust as security for the pay- ment of the bonds and that, so soon as all the shares of that company were so de- posited and its real estate transferred to the new company, a mortgage on the real estate should be executed to secure payment of the bonds, was a sale subject to a resolutive condition to become complete and effective only in the event of the new company ac- quiring the property of the first company and executing the mortgage, and that, on breach of the condition respecting the secur- ity to ibe given for payment of the bonds, the sale became ineffective and should be rescinded. — On an appeal to the Supreme Court of Canada, the judgment appealed from was affirmed. Dominion Textile Co. V. Augers, xli., 185. 42. Supplying electrical energy- — Delivery — Condition — Payment at flat rate — Obliga- tion to pay for pressure not utilized- — Sale of commodity — Agreement for service.] — ^A. contract for the supply of electrical energy provided that the company should furnish to the city at the switch^board in its pump- ing station, through a connection to be there made by the city, with the company's wires, an electrical pressure equivalent to a cer- tain number of horse-power units during specified hours daily, and the city agreed to pay for the same at a flat rate of "$20 per horse-power per annum for the quantity of said electrical current or power actually delivered " under the contract. — Held, that by supplying the pressure on their wires up to the point of delivery the company had fulfilled their obligation under the' contract and was entitled to payment at the flat rate per horse-power per annum for the energy so furnished notwithstanding that the city had not utilized it. — Per Girouard and An- glin, JJ.— The agreement was a contract for the sale of a commodity. City of Montreal V. Montreal Light, Heat and Power Co., xlii., 431. 43. Delivery of goods — Conditions as to quality, weight, etc. — Inspection — Rejection — Conversion — Sale hy Crown officials — Liability of Crown — Deductions for short weight — Costs.] — The Minister of Agricul- ture of Canada entered into a contract with the suppliants for the supply of a quantity of pressed hay for the use of the British army engaged in the operations during the late South African war, the quality of the hay and the size, weight and shape of the bales being specified. Shipments were to be made f.o.b. cars at various points in the Province of Quebec to the port of Saint John, N.B., and were to be subject to in- spection and rejection at the ship's side there by government officials. Some of the hay was refused by the inspector, as de- ficient in qviality, and some for short weight in the bales. In weighing, at Saint John, fractions of pounds were disregarded, both in respect to the hay refused and what was accepted ; there was also a shrinkage in weight and in number of bales as compared with the way-bills. The bay so refused was sold by the Crown officials without notice to the suppliants, for less than the prices pay- able under the contract, and the amount received upon such sales was paid by the government to the suppliants. In making payment for hay accepted, deductions were made for shortage in weights shown on the way-bills and invoices, and credit was not given for the discarded fractions. — Held, the Chief Justice and Davies, J., dissenting, that the appellants were entitled to recover for so much of the amount claimed on the appeal as was deducted for shrinkage or shortage in the weight of the hay deliveretl on account of the government weighers dis- regarding fractions of pounds in the weight of that accepted and discharged from the cars at Saint John. — Per Girouard, Iding- ton and Duff, JJ. — ^The manner in which the government ofBcials disposed of the hay so refused amounted to an acceptance which would render the Crown responsible for payment therefor at the contract price.— 277 COXTEACT. 278 Judgment appealed from (12 Ex. C. R. 198) allowed in part with costs, the Chief Jus- tice and Davies, J., dissenting. Boulay v. The King, xliii., 61. 44. Assignment of patent rights — Implied warranty — Privity — TaUdity of patent — Caveat emptor — Xovelty — Combination — New and useful results.'] — In the absence of an express agreement or of special circum- stances from which warranty might be im- plied, an assignment of " all the right, title and interest " in a patent of invention does not import any warranty on the part of the assignor as to the validity of the patent. Judgment appealed from (Q. ,R. 34 S. C. 388) affirmed.— Per Idington, J. — In the present case the patents were valid. Elec- tric Fireproofing Co. of Canada v. Electric Fireproofing Co., xliii., 182. 45. Implied icarranty — Fitness of mach- inery — New agreement — Breaches prior to new contract — Relinquishment of rights un- der former agreement.] — R. & N. purchased threshing machinery from the company, in Nov., 1906, under an agreement similar to that in part quoted below, and gave notes for the price. They dissolved their business connection, after using the machine for some time, and;- in March, 1907, after the thresh- ing season was over, X. was released from his obligations under the agreement, the notes signed by R. & N. were cancelled, and R. gave the company his own notes in their place and entered into a new agreement containing the following provisions : '" The said machinery is sold upon and subject to the following mutual and interdependent conditions, namely : It is warranted to be made of good material and durable with good care and with proper usage and skilful management to do as good work as any of the same size sold in Canada. If the purchasers after trial cannot make it satisfy the above warranty written notice shall within ten days after starting be given both to the company at Winnipeg and to the agent through whom purchased, stating wherein it fails to satisfy the warranty and reasonable time shall be given the company to remedy the difficulty, the purchasers rendering neces- sary _ and friendly assistance together with requisite men and horses ; the company re- serving the right to replace any defective part or parts ; and if the machinery or any part of them cannot be made to satisfy the warranty it is to be returned by the pur- chaser free of charge to the place where received and another substituted therefor that shall satisfy the warranty or the money and notes immediately returned and this contract cancelled, neUher party in such case to have or make any claim against the other. And if both such notices are not given within such time that shall be con- clusive evidence that said machinery is as warranted under this agreement and that the machinery is satisfactory to the pur- chasers. If ithe company shall at pur- chaser's request render assistance of any kind in operating said machinery or any part thereof or in remedying any defects, such assistance shall in no case be deemed a waiver of any term or provision of this agreement or excuse for any failure of the purchasers to fully keep and perform the conditions of this warranty. When at the request of the purchasers a man is sent to operate the above machinery which is found to have been carelessly or improperly handled, said company putting same in work- ing order again, the expenses incurred by the company shall be paid by said purchas- ers. This warranty does not apply to second-hand machinery. It is also agreed that the purchasers will employ competent men to operate said machinery. There are no other warranties or guarantees, pro- mises or agreements than those contained herein. All warranties are to be inopera- tive and void in case the machinery is not settled for when delivered, or if the printed language of the above warranty is changed whether by addition, erasure or waiver or if the purchasers shall in any respect have failed to comply herewith." — Same defects in the machinery had given rise to com- plaints, during the previous threshing sea- son, and had been rectified by the company before the execution of the second agree- ment ; they also made further repairs dur- ing the autumn of 1907, and then notified R. that future repairs must be at his own expense. R. paid the first instalment of the price of the machinery, but, when sub- sequently sued on his other notes, contested the claim, pleaded breach of an implied warranty of fitness and counterclaimed for damages for this breach. — Held, that all claims for damages for breaches of any kind prior to the second agreement had been waived by that agreement and that the pro- vision that there were no other v^arranties, guarantees, promises or agreements than those contained in the agreement excluded all implied warranties. — Held, further, that the condition requiring written notice of breach of warranty applied only to the war- ranty that " with proper usage and skilful management " the machinery would " do as good work as any of the same size sold in Canada," and that it had no application to the warranties that the machinery was " made of good materials " and would be '' durable with good care." — The considera- tion for the release of N., and the accept- ance of the sole liability of R. for. the price of the machinery was the execution of the new notes and agreement which involved the relinquishment by both parties of all their rights under the first agreement. Sawyer and Massey Go. v. Ritchie, xliii., 614. 46. Construction of contract — Cotidition precedent — Arbitration and award — Right of action.} — A contract for the sale of tim- ber limits contained a guarantee by the vendor that the quantity of tim'ber thereon at the time of the sale would prove equal to that shown in a statement annexed and a covenant that he would re-pay to the pur- chasers the amount of any shortage found in proportion to the price at which the sale was made. In another clause, provision for arbitration was made in case of dispute as to the amount of any such shortage but it did not in express terms deprive the pur- chaser of the right to recover any claim for shortage until after an award had been ob- tained. — Held, affirming the judgment ap- pealed from (15 B. C. Rep. 70), Idington, J., dissenting, that an award by arbitrators 279 CONTEACT. 280 had not been made a condition precedent to recovery for tlie amount of any deficiency in the quantity of timber guaranteed to be upon the limits. David v. Swift, xliv., 179. 47. Puhlic work — Wofk dehors contract — Acceptance by Crotcn — Payment — Fair value.'] — W. was contractor with the Crown for constructing a car and locomotive repair plant at Moncton, N.B., and was subject to the orders of the government engineer. By order of the engineer and with no contract in writing therefor he constructed sewers and a water system in connection with said works, and on completion of his contract the Crown accepted the additional work and agreed to pay its fair value, but not the amount claimed, which was deemed exces- sive. The Department of Railways referred the claim to the Exchequer Court and, by consent, it was referred to the Registrar of the Court to have the damages assessed, the order of reference providing that " the amount to be ascer- tained shall be the fair value or price thereof allowed on a quantum meruit." The Registrar fixed the amount at $53,205, as the fair value of the work reasonably exe- cuted on a somewhat different plan. The judge of the Exchequer Court added $39,000 to this amount, holding that the Crown had admitted the authority of the engineer to order the work to be done, and that W. was entitled to the actual cost plus a percentage for profit. On appeal by the Crown. — Held, Anglin, J., dissenting, that the judg- ment appealed against (13 Ex. C. R. 246) was not warranted ; that the Crown had not admitted the authority of the engineer, but expressly denied it by pleadings and other- wise; that all W. was entitled to be paid was the fair value of the work to the Crown and the amount allowed by the referee substantially represented such value. — (Leave to appeal to Privy Council re- fused, July 11th, 1911.) The King v. Wallherg, xliv., 208. 48. Accident insurance — Condition of policy — Notice — Tender before action — Waiver.] — ^The condition of a policy insur- ing H. against death by accident required that notice of death should be given to the company within ten days thereafter, and it was provided that if the insured met his death while under the influence of intoxicat- ing liquor the company should be liable only for one-tenth of the amount of the insur- ance. The insured disappeared on the 21st of November, 1908. When last seen on the evening of that day he was apparently un- der the influence of intoxicants, and, on 3rd April, 1909, his dead body was found in the river in an advanced state of decomposition, death having been, in all probability, caused by drowning. After the finding of the body the plaintiff gave notice of death to the com- pany and furnished proofs as required. The company refused payment and, before ac- tion, tendered to the plaintiff one-tenth of the amount of the insurance payable under the policy as full settlement therefor. The company pleaded this tender in their de- fence to the action and made proof thereof at the trial. — Held, that the tender made by the company was a waiver of the condition requiring notice within ten days of death and also an admission of liability by the company ; and, Anglin, J., dissenting, that, as the^company had failed to shew that the deceased came to his death while under the influence of intoxicating liquor, the plaintiff was entitled to recover the full amount of the insurance. Judgment appealed from (20 Man. R. 69) aflirmed. , Canadian Bail- way Accident Ins. Co. v. Harris, xliv., 386. 49. Fire insurance — Policy — Conditions^- Notice of loss— Imperfect proofs — Nonrpay^ ment of premium — -Waiver — Application of statute — Remedial clause — N. W. Ter. Ord 1903 {1st sess.), c. 16, s. ^.]— The premium on a policy of fire insurance was not paid at the time the policy was delivered but, on request, credit was given for the amount and a draft for the same by the insurance company, accepted by the insured, remained due and unpaid at the time the property in- sured was destroyed by fire. — Held, that, in an action to recover the amount of the insur- ance, the non-payment of the premium was not available as a defence. — The policy was subject to the statutory condition requiring prompt notice of loss by the insured to the company ; by another condition the insured was required, in making proofs of loss, to declare how the fire originated so far as he knew or believed. Upon the occurrence of the loss, the company's local agent gave no- tice thereof to the company, and informed the insured that he had done so and that the company had acknowledged receipt of his notice. The insured gave no further notice to the company. Forms were then supplied by the company for making proofs of loss and they were completed by an agent of the company and signed and sworn to by the insured, the origin of the fire being therein stated to be unknown. On examina- tion for discovery the insured stated that, at the time he signed the declaration, he enter- tained an opinion as to the origin of the fire, and the company's adjuster reported a similar opinion as to its origin. An adjust- ment of the amount of the loss was then pro- ceeded with by the several companies carry- ing insurances on the property in which the defendant company took part, tut, after payment by the other companies of their proportionate shares according to the ad- justment, the defendants repudiated liabili'ty on the grounds of want of notice as required by the statutory condition and non-disclos- ure of the opinion entertained by the in- sured as to the origin of the fire. — Held, re- versing the judgment appealed from (3 Sask. L. R. 219), that, in respect of both conditions, the default was the result of mistake on the part of the insured and, in the circumstances of the case, the provi- sions of section 2 of " The Fire Insurance Policy Ordinance." N. W. Ter. Ord. 1903 (1st sess.), chapter 16, should be applied and ithe insurance held not to be forfeited by reason of default of notice or imperfect compliance with the condition as to proofs of loss. Prairie City Oil Co. v. Standard Mutiinl Fire Ins. Co. (44 Can. S. C. R. 40) followed. Bell Bros. v. Hudson Bay Ins. Co., 'Xliv., 419. 50. " Torrens System " — Priority of riglit — Registration — Caveni — Notice — Oon- struction of statute — Saslatcheu-an "Land 281 CONTRACT. 282 Titles Act," 6 Edw. VII. c. 2Jf — Equitien letween purchasers — Assignment of contract — Conditions — Right enforceable against re- gistered owner.] — Under the provisions of ■ the Saskatchewan "Land Titles Act" (6 Edw. VII. c. 24), the lodging of a caveat in the land 'titles office in which the title to the lands in question is registered, prevents the acquisition of any legal or equitable interest in the lands adverse to or in derogation of the claim of the caveator. — A company, being registered owner of lands under the Act, entered into a written agreement to sell them to P., who assigned his interest in the contract to G., who then agreed to transfer his equitable interest, thus acquired, to A. Subsequently, without knowledge of A.'s interest, McK. & B. acquired a like interest from G. A caveat claiming intereat in the lands was then lodged by A., in the proper land titles office, and, without inquiry or actual notice of the registration of the caveait, McK, & B. afterwards obtained the approval of the company to the assignment which had been made to them. In an action for specific performance, — Held, per Davies, Idington, Anglin and Brodeur, JJ., that as the purchasers from G. were on equal terms as to equities, A. had priority in point of time at ithe date when his caveat was lodged ; that such priority had been pre- served by the registration of the caveat, and that the subsequent advantage which would, otherwise, have been secured by the com- pany's approval of the assignment to McK.. & B. was postponed to any equitable right which A. might have to a conveyance. And, further, per Idington, J., that, irrespective of the lodging of the caveat, A. had prior equity to the subsequent assignees. — The agreement by the company provided that no assignment of the contraot should be valid unless it was for the whole of the pur- chaser's interest, and was approved by the company, and also that the assignee should become bound to discharge all the obliga- tions of the purchaser towards the company. Until the time of the approval of the as- signment to McK. & B., none of these con- ditions had been complied with. — Held, per Davjes, Idington, Anglin and Brodeur, JJ., that the conditions in restriction of such assignments of the original contract could be invoked only 1)y the company. — Held, per Duff, J., dissenting that, as the rights of G. against the company had never become vested in A., according to the provisions of the contract, he had acquired no enforceable right against the company, the registered owner of the lands, and, consequently, he hfd no legal or equitable interest in them which could be protected by caveat. — Judg- ment appealed from (4 Sask. L. K. Ill) affirmed. Duff, J., dissenting. McKillop and Benjafield v. Alexander, xlv., 551. 51. Accident insurance — Construction of policy — Special conditions — Increased and diminished indemnity — Injuries from fits causing death.'] — In an accident policy an insurance company agreed to pay the in- sured the principal sum in case of death or specified injuries, double that sum if such death or injuries occurred under certain conditions and one-tenth for " injuries hap- pening from ... fits causing death." . . . W., holder of the policy, went at night with a lantern to an outbuilding of the fishing club which he was visiting. Shortly after the outbuilding was seen to be on fire. The fire was extinguished and W. brought out badly burned, from the effects of which he died the next day. In an ac- tion on the policy the 'trial judge found as a fact that W. had been seized with a fit and in that condition caused the fire. This finding was concurred in by the two pro- vincial appellate courts. 'The trial judge held that the company was liable for one- tenth only of the insurance. The Divisional Court reversed this ruling (26 Ont. L. R. 55, 3 D. L. R. 668), but it was restored by the Appellate Division (28 Ont. L. R. 537, 13 D. L. R. 113). — Held, affirming the judgment of the Appellate Division, Duff and Anglin, JJ., dissenting, that the injuries causing the death of W. happened from a fi.t within the meaning of the clause in the policy diminishing the indemnity to be paid. Winspear V. Accident Ins. Co. (6 Q. B. D. 42), and Lawrence v. Accidental Ins. Go. (7 Q. B. D. 216), distinguished.— ITeZd, pec Pitzpatrick, C.J. — The clause diminishing the indemnity payable is not an exempting clause but one of the three separate con- tracts between the insurers and insured as to amount of liability. — Per Anglin, .1. — It does not create a new liability, but is a clause of limitation in favour of the com- pany and to be strictly construed. (Leave to appeal to the Privy Council was refused, 15th July, 1914.) Wadsicorth v. Canadian Railway Accident Ins. Co., xlix., 115. 52. Benevolent society — Life insurance — Payment of assessments — Extension of time — Rules and regulations — Place of ■payment — Demand — Default — Suspension — Authority to waive conditions — Conduct of officials — Estoppel — Company law — Arts. 1152, lie.'i. C. C] — By the constitution and by-laws of a mutual benevolent society death indemnities were assured to members who, in order to maintain good standing and entitle their beneficiaries to the indem- nity, were, thereby, required to make prompt payments of monthly assessments within thirty days from the dates when they be- came payable. In the subordinate lodge of which C. was a member it had for some time been the practice of its financier to receive such payments fifteen days later than the thirty days so limited and, if then paid, members were not reported as having been in default and, ip.so facto, under sus- pension according to the regulations pro- vided by the constitution and by-laws in- corporated in the certificate whereby the indemnity was secured. For several years the financier of the subordinate lodge had habitually received these payments from C. at his residence, on or about the last day of this extended term. Seven days after the expiration of the thirty days for payment of the last assessment, and while it was still unpaid, C. died and, on the following day. the overdue assessment was paid to the local financier and a receipt therefor granted by him. The Grand Treasurer of the Sociely refused to accept this payment on the ground that C. was then under suspension and was not a member in good standing at the time of his death. — Held, affirming the judgment 283 CONTEACT. 284 appealed from (Q. E. 21 K. B. 541), Duff, J., dissenting, that by the course of conduct in the subordinate lodge, of which the Grand Lodge was aware, the condition as to prompt payment had 'been waived, that C. remained in good standing until the time of his death and that the death indemnity was exigible by the beneficiaries. Wing v. Har- vey (5 DeG. M. & G. 265 ; 43 Eng. R. 872) ; Tattersall v. People's Life ins. Go. (9 Ont. L. R. 611) ; Btwkbee v. United States An- nuity and Trust Co. (18 Barb. 541) ; Insur- ance Co. V. Wolff (95 U. S. R. 326) ; and Redmond- v. Canadian Mutual Aid Associa- tion (18 Ont. App. R. 335), referred to. — Per Pitzpatrick, C.J., and Brodeur, J. — As no place of payment had been indicated, ac- cording to the law of the Province of Que- bec (art. 1152 0. C.), assessments were payable at the domicile of the assured ; consequently, owing to ihe practice which had prevailed as to the receipt of payment at C.'s domicile and because no demand for payment had been made at such domicile, there had been no default on the part of C. and he had not become suspended at the time of his death. — Per Duff, J., dissenting. — Neither the Grand Lodge nor the subor- dinate lodge or their officials had power to waive the conditions as to payment pre- scribed by .the constitution an(J by-laws and the certificate of membership of C. ; these instruments constituted the contract of in- surance and sufficiently designated the office of the financier of the subordinate lodge as the place where payment of the assessments was to be made ; even if article 1152 C. C. applies, no notification was given or proof made conformably to article 1164 C. C, and consequently, failure to make payment of the assessment due within the thirty grace days, at the office of the sub- ordinate lodge, worked a default and, ipso facto, the suspension of membership, and, therefore, C. was not in good standing at the time of his death so as to entitle the beneficiaries to the indemnity according to the regulations of the society. — Held, fur- ther, 2>er Duff, J. — ^As the member must be presumed to know the limitations of the authority of the Grand Lodge, the subordi- nate lodges, and the officials of each of them, as determined by the constitution and by-laws, the ostensible authority of officials cannot, for any relevant purpose, be of wider scope than the actual authority which is de- fined specifically and exhaustively by the con- stitution. Royal Guardians v. Clarl-e, xlix., 229. 53. Cancellation — Expelling contractor — Condition precedent — Possession of plant — Waiver — Seizure in execution — Interpleader — Insolvency — Aliandonment of vorlcs — Surety ship. "i- — A contract for the construc- tion of works provided that upon the insol- vency of the contractor, or the company's manager certifying that, in his opinion,' the contractor had abandoned the contract, then the company might enter upon the works, expel the contr,actor and itself use the ma- terials and plant upon tlie premises for the use of itself or another contractor in the completion of ,the work^, and that, upon svich entry the contract should be deter- mined. In consequence of a letter frpm the; contractor notifying the company, of the stoppage of the works, on account of al- leged unjustifiable interference therewith, the company took possession of the ma- terials and plant of the contractor, without obtaining the certificate specified, did some work therewith, and then entered into cor- respondence with the contractor's bondsmen to induce them to proceed with the contract. Upon seizure of the goods under execution by a judgment creditor of the contractor. — Held, Duff, J., dissenting, that as the insol- vency of the contractor had not been proved nor a certificate of their manager procured, as provided by the contract, the goods in question did not become the property of the company and the contractor's letter could not be considered as a waiver of the con- ditions precedent stipulated in the contract ; consequently, the possession so taken of the plant and materials did not entitle the com- pany to the right of possession thereof as against the execution creditor. — Per DufE, J., dissenting. — In the contract in question the term " insolvency " should be construed as meaning the condition of a person unable to pay his just debts in the ordinary course of business ; the contractor was visibly in- solvent in this sense ; the contract had also been abandoned, the company had taken pos- session under the provision in, the contract, and, there being no evidence to establish a contract of suretyship by the bonding com- pany which was requested to proceed with the works, the possession of the company was effective as against the execution creditor. The Queen v. The. Saddlers' Co. (10 H. L. Cas. 404). and Parl-er v. Gossage (2 C. M. & R. 617), referred to. Uplands Ltd. V. Goodacre, 1., 75. 54. Municipal corporation — Contract with company — Franchise for water supply — Protection against fire — Negligence — Liahil- ity of company to ratepayer — Dilit — T)am- ages.^ — A municipal corporation, with as- sent of the ratepayers, entered into a con- tract by which it gave the defendant com- pany the exclusive privilege for twenty-five years of maintaining a system of water supply to the municipality. The company was authorized to fix rates for water sup- plied for domestic purposes and was obliged, for protection against fire, to have hydrants at certain places and at all times, in case of fire, except when the plant was undergoing necessary repairs, to maintain a specified capacity and pressure of water. The pro- perty of B., a ratepayer, was destroyed by a fire which attained serious dimensions ow- ing to the pressure being at the outset much less than that required by the contract. — — Held, affirming the judgment of the King's Bench (Q. R. 22 K. B. 487) which aflirmed the Court of Review (Q. R. 41 S. C. 348), Brodeur, J., dissenting, that there was no contractual relation between B. and the company ; that the contract did not evidence any intention by the parties to it to give a right of action against the company to efich ratepayer in case of violation of the pro- visions for fire protection; and that B., therefore, could not maintain an action for, the value of his property so destroy?^, — Held, also, Brodeur, J.,, dissenting, that, B. could not maintain an action for damagp? on the ground that the failure ; to maintji^i the pressure stipulated for in the contj-fct 285 CONTEACT. 386 constituted a dSlit or quastdilit under the law of Quebec. Belanger v. Montreal Water d- Power Co., 1., 356. 55. Delivery — Specified time — Default — Liquidated damages — Pre-estimate — Penalty — Inexecution — Compensation — Cross-de- maml^Practice—Arts. WIS, 1076, 1131 et seq., C. C.—Art. 211, C. P. Q.] — A contract (in the form usual in the Province of On- tario) for the manufacture, in Ontario, of electrical machinery to be delivered within a specified time at Jlontreal, provided that in case of failure to deliver various parts of the machinery as provided therein the sum of $25 should " be deducted from the con- tract price as liquidated damages and not as a forfeit for every day's delay in the de- livery of the apparatus as specified, etc." The contractor brought action in the Pro- vince of Quebec to recover an unpaid bal- ance of the price and the defendants eon- tended that they were entitled to have the claim reduced by a sum equal to the amount so stipulated for default in prompt delivery. — Held, that, on the proper construction of the oonttaet, the intention of the parties was to pre-estimate a reasonable indemnity as liquidated damages for delay in the execu- tion of the contract ; that effect should be given to their intention by allowing the de- duction of the amount so estimated from the contract price, and that there was no necessity for a cross-demand therefor by the defendants nor that they should allege or prove that they had sustained actual dam- ages in consequence of the delay in delivery. Diiiilop Pneumatic Tyre Co. v. New Garage and Motor Co. ([1915] A.- C. 79) ; Wallis V. .S'mift (21 Ch. D. 243) ; Webster v. Bo- sanquet ([1912] A. 0. 394) ; Clydehanh Engineering and Shipbuilding Co. v. Yzqiiierda y Castaneda, ([1915) A. C. 6) ; Hamlyn v. Talisker Distillery Co., ([1894] A. C. 202) ; The "Industrie," ((1894) P. 58) ; and Ottawa Northern and Western Rttiliray Co. (36 Can. S. C. R. 347), re- ferred to. — Judgment appealed from (Q. R. 47 S. C. 24) affirmed. Canadian General Electric Co. v. Canadian Riihber Co., lii., 349. 56. " Consistent conditions " — Impossi- bility of performaince — Release from, liabil- ity.] — The defendants having filed a tender with the City of Quebec for the reconstruc- tion of Dufferin Terrace agreed with the plaintiffs .that, if their tender was accepted, they would enter into a written contract, " consistent with the conditions " of such contract as might be made with the city, for the purchase from the plaintiffs of all the structural steel work that would be needed. The city corporation accepted the tender, but only on the condition tliat the steel and iron work should Be purchased by the de- fendants from another firm. — Held, revers- ing the judgment appealed from (Q. R. .24 K. B. 389), Davies and Idington, JJ.,. dis- senting, that, on a proper construction,, the agreement contemplated a contract to be entered into on terms Qonsistent with what- ever contract might haye to be made with the dty; that, the nature of thp condition, imposed by the city qorporation made it impossible; .for thp defendants to ,purchas,e ihe necessary sjeel anjd iron wock. from thia plaintiffs, and that, without fault on the part of the defendants, the agreement never became operative and both parties were liberated from , obligation thereunder. Broicning v. Masson, lii., 379. 57. Purchase of bonds — Statute of Fra/uds — Memorandutn in writing — Correspondence — Relation of documents — Parol evidence.] — In an action against D., claiming dam- ages for breach of a contract to purchase bonds, a telegram from D. to his partner was produced saying, " I absolutely bought them yesterday after our 'phone conversa- tion, they agreeing to our terms." — Held, that parol evidence was properly received to show that terms had been stated by D., over his signature, that they were the only terms and were those referred to in the tele- gram and the two constituted a sufficient memorandum within the Statute of Frauds. Eidgeway v. Wharton (6 H. L. Gas. 238) and Baumwnn v. James (3 Ch. App. 508) followed. Duff, J., dissented. — Judgment of the Appellate Division (35 Ont. L. R. 349) affirming that at the trial (34 Ont. L. R. 403), affirmed. Doran v. McKinnon, liii., 609. 58. Supply of material — Payment — Gerti- fihate of engineer — Condition precedent — Improper interference — Fraud — Hindering performance of condition — Monthly esti- mate — Final decision. Timiishaming and Northern Ontario Ry. Go. v. Wallace, xxxvii., 696. 59. Electric lighting — Terms of fran- chise — Use of highicay — Poles and wires. Consumers' Electric Co. v. Ottawa Electric Co., Cout. Cas. 311. 60. Inapplicable conditions — Action for quantum meruit. TorcHito Hotel Co. v. Sloane, Cout. Cas. 356. 61. Loading ship — Time limit — Custom — Charter, xxxiv., 578. See Contract. 62. Fire insurance — Contract of re-insur- ance — Trade custom — Conditions of con- tract — " Rider " to policy — Limitations of actions — Commencement of prescription — Art. 2236 C. C, xsxv., 208. See iNsrnsANCE, FntE. 63. Construction of contract — Evidence — Verdict — New trial — Life insurance — Acci- dent policy — Contract — Conditions — Mis- representations — Non-disclosure — War- ranty — Words and terms — Rule of interpre- tation, XXXV., 266. See Evidence. 64. Public works — Change in plans and specifications — Waiver — Powers of execu- tire — Construction of statute — Directory or imperative clauses — " Stipulations " — Extra works — Engineer's certificate — • Instruc- tions in writing — Schedule of prices — Com- pen.iatian at increased rates ^ Damages — Right of action — Quantum meruit, xxxviii 5Q1--. ,,..,., - . , . "^ee CpiSfTiRApT, 287 CONTRACT. 288 65. Fire insurance — Property insured — Standing timber — Return of premiums, xxxix., 405. See CONTEACT. 66. Share of profits — Alsolute or condi- tional undertaking — Construction of con- tract — Damages, xl., 198. See CONTKACT. 67. Marine insurance — Loss of freight — Detention hy ice — Peril insured against. Cam. Cas. 86. See INSUKANCE, Marine. 68. Title to land — Easement appurtenant — Xlser of lane — Prescription — Agreement for right of way — Construction of contract — Practice, Cam. Cas. 352. See Easement, Security to hank — Chattel mortgage, xlvii., 216. See Insurance, Fire. 11. Marine insurance — Mutual company — Foreign corporation — Cancellation of policy — Return of unearned premium — Cancella- tion iy operation of law, xlvii., 429. See Insurance, Marine. 78. Municipal corporation — Exclusive franchise — Renewal «* expiration of term — Right of preference — By-law — Approval by ratepapers, 1., 122. See Municipal Corporation. 79. Insurance — Fidelity bo7id — Untrue representation — Materiality — R. 8. 0. 1897, c. 203, s. IJfl, s.-s. 2. Arnprior v. V. 8. Fidelity, li., 94. See Insurance, Guarantee. 4. Consideration. 69. Champerty — Maintenance — Affinity and consanguinity — Parties interested in litigation — Litigious rights — Facte de quota litis — Illegal consideration, xxxiv., 24. See Champerty. 70. Life insurance — War risk — Service in South Africa — Extra premium — Special condition — Consideration for premium, XXXV., 35. See Contract. 71. Mechanics' lien — Overpayment— ^Lia- bility of owner of land — Attaching of lien — Negotiation of note — Claim of lienholder — Waiver — Estoppel. Travis v. Brechenridge- Lund Lumber & Coal Co., xliii., 59. 72. Fire insurance — Policy ■ — ■ Statutory conditidns — Gasoline on premises — Illumin- ating oils insured — Notice of loss — Remedial clause in Act — Discretion of court — Con- struction of statute, xliv., 40. See Insurance, Fire. 73. Benefit association — Life insurance- By-laws and regulations — Transfers be- tween lodges — Member in good standing — Regularity of affiliation — Payment of dues and assessments — Evidence — Presumption — Waiijer, xliv., 145. See Insurance, Life. 74. Lease — Covenant to pay for improve- ments — Foundations, xlvi., 107. See Lease. 75. Vendor and purchaser—Sale of land — Condition dependent — Deferred payment — Disclosure of title — Abstract — Refusal to complete — Lapse of time - — Defeasance — Specific performance, xlvii., 114. See Vendob and Purchaser. 76. Fire insurance — Insurance on lumber — Conditions — Warranty — Railway on lot — 80. Purchase of railway bonds — Consid- eration — Extension of line — • Breach of contract — Damages — Personal liability of president of company — Appeal — Jurisdic- tion.] — ^An agreement in writing provided that in consideration of the purchase of bonds of the Grand Valley Railvpay Co. by certain manufacturing companies and other citizens of St. George, Ont., P., president of the company, undertook and agreed on his own behalf and on behalf of his company to procure a through traffic arrangement with the Canadian Pacific Co. so as to give St. George the benefit of competitive freight rates ; that he would do all things lawful' to secure such arrangement ; and that the extension of the Grand Valley road to St. George and the securing of said arrange- ment would be proceeded with at once and with the greatest possible despatch. The agreement was signed " The Grand Valley Ry. Co., A. J. Pattison, Pres't." Some work was done on the extension of the line to St George, but it was never completed. The purchasers paid for $10,000 worth of bonds on which dividends were paid for five year.s when payments ceased. The purchasers brought action against the company and P. claiming the return of the money paid or damages for breach of contract. The trial judge held (26 Out. L. R. 441), that each of the purchasers was entitled to substantial damages and gave them judgment for $10,- 000 and directed return of the bonds on payment. The Divisional Court (27 Ont. L. R. 556) held that the individual pur- chasers were only entitled to nominal dam- ages, and gave judgment for the corporate purchasers for the amount they paid for the bonds. The Appellate Division (30 Ont. L. R. 44) held that all were entitled to sub- stantial damages, but ordered a reference as the evidence was not snfficieut to deter- mine the amount. All held P. personally liable as well as the company. The pur- chasers appealed to the Supreme Court of Canada, asking that the judgment at the trial be restored. The defendants by cross- appeal claimed dismissal 'of the action.— Held, Idington, J., dissenting, that the judg- ment of the Appellate Division be affirmed. — Per Davies, J., while not formally dis- senting from the conclusion to affirm, that the damages might be assessed at $iO,(X)0 289 CONTEACT. 290 as at the trial. — Per Idington, J. — That the iudividual purchasers are only entitled to nominal damages; that the maximum to be allowed the corporate purchasers is the amount they subscribed for the bonds; and that the order of reference should be modi- fied accordingly. — Held, per Anglin, J. — The substantive right in controversy on the appeal is the quantum of damages ; that was not determined adversely to the appellants by the judgment appealed against; they were, therefore, not deprived of a " substan- tive right in controversy in the action " within the meaning of that phrase in clause (e) of 4 & 5 Geo. V. c. 51, s. 1, and the appeal should be quashed for want of juris- diction which would dispose of the cross- appeal as well. Wood v. Orand Valley Rail- way Co., li., 283. 81. Consideration - — Settlement of action — Statute of Frauds — ■ Trade agreemen t — Restraint of trade — Crim. Code s. J/GS — Criminal law.'\ — In 1905, M. and his two brothers entered into a contract with R. by which they gave him exclusive control of their salt works with some reservations as to local trade. E. assigned the contract to the Dominion Salt Agency, a partnership con- sisting of his firm and two salt manufac- turing companies, which agency thereafter controlled about ninety per cent, of the out- put of manufacturers in Canada. — Held, that the contract was not ex facio illegal and as the Canadian output was exceeded by the quantity imported which may have com- peted with it, and the price was not en- hanced by reason of this control by the agency, the court should not hold that it had the effect of unduly restraining the trade in salt or that it contravened the pro- visions of section 498 of the Criminal Code. — In 1914, M., as administrator of his father's estate, brought action against the estate of C. who, in his lifetime, had been president of the Dominion Salt Agency and president of and largest shareholder in one of the companies composing it. This action was based on an alleged agreement by C, in connection with the settlement of a prior action against the three partners in the agency, by which he promised to pay five- sixteenths of the difference between the amount claimed and that paid on settlement. Evidence of the agreement was given by the plaintiff's solicitor in the former action and by defendants' solicitor also. — Held, revers- ing the judgment of the Appellate Division (36 Ont. L. R. 244), Fitzpatrick, C.J., and Duff, J., dissenting, that the settlement of the action was good consideration for C.'s contract ; that his agreement was not a promise to answer for the debt of another and did not need to be in writing ; that it was sufficiently proved ; and that the evi- dence of the plaintiffs' solicitor in the for- mer action was corroborated (R. S. O. [1914] c. 76, s. 12) by that of the solicitor for the defendants. — Per Anglin and Bro- deur, JJ. — The solicitor was not an inter- ested party and corroboration was not re- qnired for that reason; if required for any other it was furnished. — The original agree- ment transferring the salt business to E. was executed by the three brothers " as re- S.CD. — ^10 presenting the estate of M. deceased." The action which was settled was brought by the same three persons. After the settle- ment letters of administration to M.'s estate were taken out. — Held, that the present action was properly brought in the name of the administrator but, if necessary for de- fendants' protection, his two brothers might be added as plaintiffs. MaioEwan v. To- ronto General Trusts Corporation, liv., 881. 82. Banking — Purchase of company's assets — Bill of sale — Description of chat- tels— B. a. •• Bills of Sale Act " R. S. B..C. 1911, c. 20 — Registration — • Recital in iill of sale — Consideration — Defeasance — Refer- ence to unregistered note — Collateral secur- ity — Loan by bank — "Bank Act," (D.) S &Jt Geo. V. c. 9, s. 76. Ball v. Royal Bank, In., 254. See Bell of Sale. 5^ CONSTBUCTION. 83. Municipal corporation — Water service — Statutory authority — Construction of statute — Water for domestic, fire and other purposes — Motive power — Discretidn of council.'] — The charter of a town (50 Vict, e. 58, s. 6 [N.B.]), provides that "the town council of Town of Campbellton are hereby authorized and empowered to provide for the said town a good and sufficient supply of water for domestic, fire and other pur- poses." — Held, per Fitzpatrick, C.J., and Duff, J. (Idington, J., contra, Davies and Anglin, JJ., dubitante) , that the statute em- powers the municipality to furnish water for the use of the customer in working a printing-press. — The town council, by by- law, fixed the rates to be paid for water in- cluding " printing presses, one service, IVi pipe or less, per year, $30." C, proprietor of a newspaper and printing establishment, connected his premises with the water mains by a two-inch pipe and received wa- ter for a year for his motor, paying said rate therefor. He then continued the use of the water for some months when the council passed a resolution that newspaper proprie- tors should be notified that the supply would be cut off at a certain date, which was done. C. brought an action for damages to his business. — Held, per Idington, J. — The council had no authority to make the con- tract with C. ; there was no authority in the absence of a special contract with the town, to place a two-inch service pipe for receipt of water ; and if the municipality had power to enter into this agreement it was under no duty to exercise it. — Per Fitzpatrick, C.J., and Duff, J., that the municipality having entered upon the service of the ap- pellant's motor was bound to continue it unless and until the council in the bond fide and reasonable exercise of its discretion thought it desirable to discontinue it in the interest of the inhabitants as a whole. — Per Davies and Anglin, JJ. — If any contract existed it was one under which C. was en- titled to a supply of water for his motor so long as the town council should, in its dis- cretion, deem it advisable to continue it. ^91 CONTEACT. 298 There was no evidence to warrant the jury's finding that the council was guilty of negli- gence and exercised its discretion mala fide. — Per Fitzpatrick, C.J., and Duff, J. — ^The circumstances disclosed were such as to war- rant a finding of unfair discrimination against C, but the damages awarded were excessive. — ^Judgment ordering a new trial (39 N. B. Rep. 573) affirmed. Crockett v. Town of Campbellton, xliv., 606. 84. Literary work — Publisher and author — Obligation to publish^ — In 1901, M. & Co., publishers of Toronto, and L., a!n au- thor in Ottawa, signed an agreement, by which L. undertook to write the life of the Count de Frontenac for a work entitled " Makers of Canada," in course of publica- tion by M. & Co..; the latter agreed to pub- lish the work and pay L. $500 on publication and a like sum when the second edition was issued. This contract was carried out and the publishers th^n proposed that L. should write on the same terms, the life of Sir John A. Macdonald, for which that of William Lyon Mackenzie was afterwards substituted. L. prepared the latter work and forwarded the manuscript to the pub- lishers, who, although they had paid him in full for it in advance, refused to publish it, as being unsuitable to be included in " The Makers of Canada." L. then tendered to M. & Co. the amount paid him and de- manded a return of the manuscript, which was refu.sed, M. & Co. claiming it as their property. In an action by L. for posses- sion of his manuscript, — Held, affirming the judgment of the .Court of Appeal (20 Ont. L. R. 594), Idington and Anglin, JJ.. dis- senting, that he was entitled to its return. — Held, per Fitzpatrick, C.J., that the pro- perty in the manuscript (or what is termed literary property) has a special character, distinct from that of other articles of com- merce ; that the contract between the par- ties must be interpreted with regard to such special chanictcr of the subject-matter ; that it implies an agreement to publish if accepted; and when rejected the author was entitled to treat the contract as rescinded and to a return of his property. — Held, per Davies and Duff, JJ., that there was an express contract for publication and an im- plied agreement that the manuscript was to be returned if publication should become impracticable for such reasons as those given by the publishers. — Held, per Duff, J., that the publishers, until publication, could be treated as having possession of the manuscript for that purpose and, that pur- pose failing, there was a resulting trust in favour of the author. Morang & Go. v. Lesuenr, xlv., 95. 85. Dedicatiwi of lands for highicay ■ — Opening of street — Construction of agree- ment.'] — A land company made a donation of certain lots of land to the municipal cor- poration for the purpose of a highway and the corporation agreed to open and construct a portion of the street when necessary. — Held, that, on the proper construction of the agreement, in view of the powers con- ferred upon the corporation by section 85 of its charter (Que.), 56 Vict. c. 54, the word " necessary " in the agreement sliould be construed as meaning " necessary in the public or general interest," and not merely in the interest of the other party to the agreement. In re Morton and the City of St. Thomas (6 Ont. App. R. 323), and Pells V. Boswell (8 O. R. 680), referred to. Hutchison V. City of Westmount, xllx., 621. 86. Builders and contractors — Materials supplied— Order for money payable under contract — Evidence — Estoppel— Lien — En- forcing equitable assignment — Practice.] — A building contractor gave a written order upon the owner directing him to pay the sum of $8(X) to the plaintiff on account of the price of materials supplied for use in ' the building which was being erected. The order was presented to the owner and, al- though not accepted in writing, was held over to await the time for making payments under the contract. The contractor failed to complete the work, and it was finished by the owner at an outlay wjiieh left the balance of the contract price insufficient to meet the full amount of the order. — Held, the Chief Justice and Idington, J., dissent- ing, that the order was effective as an as- signment of money payable under the con- tract, but, as there was no evidence of a promise to pay the amount thereof out of the fund, or of facts precluding the owner from denying the sufficiency of what ulti- mately was payable to >the contractor, it could not be enforced against the owner as an equitable assignment. — Per Duff, J. — As the equitable relief sought could be granted only upon a consideration of all the circumstances and no claim therefor was made in the courts below nor was the evi- dence directed to any such claim, the claim fame too late on an appeal to the Supreme Court of Canada. — Per Fitzpatrick, C.J., and Idington, J., dissenting. — As the con- duct of the owner respecting the order was equivocal and misleading, and induced the materialman to abstain from filing a lien to protect himself, the owner ought to be held liable for the full amount of the order as an equitable assignment. — The appeal from the judgment of the Appellate Division (8 West. W. R. 729) was dismissed with costs. Ritchie v. Jeffrey, lii., 243. 87. Construction — Conditions — Mutual performance — Damages.] — In a contract for the sale and delivery of gas if the vendor, not being in default, is prevented, by the wrongful act of the purchaser, from fulfill- ing his obligation to deliver he is entitled to the compensation he would have received but for such wrongful act. Mackay v. Dieh (6 App. Cas. 251) and Wilson v. Northamti- ton and Banbury Junction Railway Co. (9 Ch. App. 279) applied. — Anglin. J., dis- sented on the quantum of damages. Kohler V. Thorold Natural Gas Co., lii., 514. 88. Construction of statute— N.-W. Ter. Ord. 180S, c. ,U — Extra-judicial seim-e— Chattel mortgage — Sale through bailift — Excessive costs — Penalty — Waiver — " Bank Act," R. S. C. ( 1906) c. 29, s. 91— Interest — Excessive charges — Settlement of account stated — Voluntary paym^t — Surcharging and falsifying — Reduction of rate — Removal of mortgaged property — Negligence — Meas- ure of damages, xliv., 473. See Chattel Moetgage. 2!)3 CONTEACT. 294 89. Petition of right — Powers of Commis- sioners of the Transcontinental Railway — Liability of Crown — Gonstrustion of statute —S Mdw. VII. c. 71 (D.), xliv., 418. See Cbown. 90. Mortgage — Manitoba " Real Property j^ct " — Power of sale — Special covenant — Not ice — Statutory supervision — Registered title — Eguitalle rights — Possession — Mort- gagee ■ — Limitation of action — Construction of statute— R. 8. M. 1902, c. US, s. 75— " Real Property Limitation Act," R. 8. M. 1902, 0. 100, s. 20. xlv., 618. See Mortgagee. 91. Constitutional law — Provincial legis- lation — Succession duties — Taxation — . Property within prov-ince — Bono notabilia — Sale of lands — Covenant — Simple contract — Specialty — Construction of statute — Sever- able prorisiotis—R. S. M. 1902, c. 161, s. 5 —i ct 5 Edtv. VII. c. -'/o, s. Jf (Man.) — Appeal— Jurisdiction. Re Muir, li., 428. See CoNSTiTL'TiONAL Law, 1. 92. Construction of statute — Sales of sub- divided lands — Registration of plans — Pro- hibitive sanction — " Land Titles Act," 6 Edu: VII. c. 24, s.-s. 7 (Alta.)—Jt Geo. V. c. 2, s. 9; 5 Geo. V. c. 2, s. 25 (Alta.) — Retrospective legislation — Illegality of d.-ntra'Ct — Rescission — Recovery of money paid — Right of action — Practice — Pleading — Appeal, lii., 185. See Statute. 93. Assessment and taxation — Interest in land — Recitals in agreement — Validation by statute — Legislative declarations — Construc- tion of contract— R. 8. B. C. 1911, c. 222, s. J,7—2 Geo. V. c. 37 (B.C.)— 3 Geo. V. c. 71, s. 5 (B.C.), Hi., 15. See Assessment and Taxation. 6. Crown Contbacts. ^i. Public ivorks — Contract — Change in jilans and specifications — Waiver by order in council — Powers of executive — Construction of statute — Dircctoiy and imperative clauses — Words and phrases — " Stipulations " — I'xehequcr Court Act, s. J.3 — Extra iro)ls — Engineer's certificate — Instructions in nrit- inn — Schedule of prices — Compensation at increased rates — Damages — Right of action — Quantum meruit.'i — The suppliants, aiJ- pellaiits, were contractors with the Crown for the widening and deepening of a canal and, by their petition of right, contended that there were such changes from the plans and specifications and in the manner in which the works were obliged to be executed as made the provisions of their contract in- applicable and that they were, consequently, entitled to recover upon a quantum meruit. In order to afford relief, an order in council was passed waiving certain conditions, pro- visoes and stipulations contained in the con- tract. By the judgment appealed from, the judge of tBe Exchequer Court held (10 Ex. C. R. 248), that there had been no such changes as would entitle the contractors to recover on the quantum meruit, as in the case of Bush v. The Trustees of the Town and Harbour of Whitehaven (52 J. P. 392; 2 Hudson on Building Contracts (2nd ed.) 121) ; that the words "shall decide in ac- cordance with the stipulations in such con- tract " in the thirty-third section of " The Exchequer Court Act " might be treated as directory only and effect given to the waiver in respect to the absence of written direc- tions or certificates by the engineer in re- gard to works done, but that the remaining clauses of the section were imperative and there could be no valid waiver whereby a larger sum than the amount stipulated in the contract could be recovered, e.g., on prices for the classes of work, so as to give the contractors a legal claim for higher rates of compensation without a new agree- ment under proper authority and for good consideration. On appeal to the Supreme Court of Canada : — Held, per Girouard, Da- vies and Maclennan, JJ., that the decision of the judge of the Exchequer Court was correct. — Per Idington and Duff, JJ. — That the word " stipulations " in the first part of the section referred to, should be construed as having relation entirely to the second part of the section and as applying to the rates of compensation fixed by the contract ; that, on either construction, the result would be the same in so far as the circumstances of the case were concerned ; that it did not warrant an implication that the executive could, without proper authority, exceed its powers in relation to a fully executed con- tract or confer the power to dispense with the requirements of the statute, and that, consequently, there could not be a recovery upon quantum meruit. Pigott <& Inglis v. 2'he King, xxxviii., 501. 95. Title to land — Railway aid — Land agent — Crown patents — Dominion lands — Regulations — Reservation of minerals — ,53 Vict. c. J^ — R. S. C. c. 54 — Con-^truction of statute — Free grants — Parliamentary con- tract.}— The Act, 53 Vict. c. 4 (D.), in 1890, granted, as a subsidy in aid of the construction of the railway, certain wild lands of the Crown in the North-AVest Ter- ritories of Canada. When the lands had been earned, by the construction of the rail- way, the Government of Canada refused to issue patents granting the lands to the rail- way company, or to the land company to which their rights had been assigned, except with the reservation of all mines and min- erals and the right to work the same. — Held, per Tasehereau, C..T., and Girouard, J. — That the Dominion Lands Regulations of 1889, paragraph 8, providing for reserva- tions in land grants, did not apply to the lands given as subsidy, but exclusively to grants of land made, in ordinary course, under the general laws governing the sale, use, occupation, and settlement of Crown lands, which, in regard to this subsidy, had been overriden by the Parliamentary grant made in virtue of a contract between the Crown and the railway company; that the railway company's title was perfect without the issue of a patent, which could avail only as evidence of the allotment of particular lands, and there could be no express or im- plied derogation from the free grant under the statute. (This decision was affirmed on appeal, by the Privy Council (1904), A. C. 295 CONTEACT. 296 765.) — Held, per Da vies and Armour, J J. — That it must be assumed that the lands to be given as subsidy were to be subject to the Dominion Lands Regulations of 1889, notwithstanding that the Act granting the subsidy declared that the lands to be earned by the railway company should be " free grants." — (Reversed by the Privy Ctmncil, ubi sup.) — The judges being thus equally divided in opinion, the appeal stood dismissed with costs, and the Exchequer Court judgr ment stood affirmed. Calgary and Edmon- ton By. Co. and Calgary and Edmonton Land Co. v. The King, Gout. Gas. 271. 96. Mines and mining — Hydraulic regula- ti()p,s — Application for mining location — Duties imposed on Minister of Interior — • Status of applicant — Vested rights — Con- tract binding on the Crown, il., 258. See Mines a^-d Mining. 97. Timber license — Grown lands in Brit- ish Columbia — Real estate — Personalty — Sale — Exchange — Consideration — Pay- ment in joint stock shares — Vendor's lien — Erid^ce — Onus of proof — Pleading and practice, xliv., 458. See Lien. 7. GusTOM OF Trade. 98. Construction of contract — Custom of trade — Arts. 8, 1016 C. C. — Sale of goods — Delivery.'] — The construction of a contract for the sale of goods cannot be affected by the introduction of evidence of local mer- cantile usage unless the terms of the con- tract are doubtful and ambiguous. Du- fresne v. Fee, xxxv., 274. 8. Deteemination. 99. Possessory action — Trouble de posses- sion — Right of action — Actio negatoria ser- I'itutis — Trespass — Interference with water- course — Agreement for user — Expiration of license by nan-use — Taxiit renewal — Can- cellation of agreement — Recourse for dam- ages, xxxix., 81. See Practice. 9. Executed Contracts. 100. Public vorlis — Change in plans and specificaticlns — Waiver by order in conncil — Powers of executive — Construction of stat- ute — " Stipulations " — Extra works — En- gineer's certificate — Compensation at in- creased prices — Damages — Right of actimi — Quantum meruit, xxxviii., 501. See Contract. 101. Mechanics' lien — Completion of con- tract — Time for filing claim — Construction of statute — R. S. M. (1902') c. 110, ss. 20, 36 — Right of appeal, xxxix., 258. See Lien. 10. Fobmation of Contracts. 102. Contract — Resolution by municipal corporation — Acceptance of offer to pur- chase — Evidence ■ — Written instruments Statute of Frauds — Estoppel] — T. offered to purchase lands which the municipality had bid in at a tax sale, and to pay there- for the amount of the arrears of taxes and costs. The council resolved to accept " the amount of taxes, costs and interest " against the lands and authorized the reeve and clerk to issue a deed at that price: — Held, reversing the judgment appealed from, that' even if communicated to T. as an acceptance of his offer, this resolution would have raised no contract on account of the variation made by the addition of interest. — An instrument, ^vhich was never delivered to T., was exe- cuted by the reeve and clerk of the munici- pality, in the statutory form of conveyance upon a sale for taxes, reciting the above re- solution but without a reference to any con- tract in pursuance of the resolution, and about two months after the passing of the resolution, upon receipt of another offer for the same lands, the council resolved to in- timate to the person making the second offer " that the lot had been sold to T."—Eeld, that these circumstances could not be relied upon as an admission of a prior contract of sale. — Held, also, that, even if it could be inferred that contractual relations had been established between T. and the municipality, it did not appear that there had been any written communications in respect thereto made on behalf of the municipality and, consequently, the alleged admissions of a contract did not satisfy the Statute of Frauds and could have no effect. District of Xorth Vancouver v. Tracy; xxxiv., 132. 103. Sale of goods — Contract by corres- pondence — Statute of Frauds — Delivery- Principal and agent — Statutory prohibition — Illicit sale of intoxicating liquors — Enow- ledge of seller — Validity of contract.]— B., a trader, in Truro, N.S., ordered goods from a company in Glasgow, Scotland, through its agents, in Halifax, N.S., whose authority was limited to receiving and trans- mitting such orders to Glasgow for accept- ance. B.'s order was sent to and accepted by the company and the goods delivered to a carrier in Glasgow to be forwarded to B. In Xova Scotia: — Held, affirming the judg- ment appealed from (37 N. S. Rep. 482), Idington, J., dissenting, that the contract was made and completed in Glasgow.— Where a contract was made and completed in Glasgow, Scotland, for the sale of liqnor by parties there to a trader in a county in Nova iScotia where liquor was forbidden by law to be sold on pain of fine or imprison- ment, and the vendors had no actual know- ledge that the purchaser intended to resell the liquors illegally, the contract was not vond and the vendors could recover the price of the goods. Bigelow v. Craigellachie Olenlivet Distillery Co., xxxvii., 55. 104. Construction of contract — Findings of trial judge — Appreciaition of evidence- Reversal on appeal.] — In a dispute as to the nature and effect of a contract, the trial judge, on his view as to the weight of evi- dence, found the facts in favour of the 297 COXTEACT. 398 plaintiff and gave judgment accordingly. His decision was reversed by a majority of the court in banco, and the action was dis- missed with costs. — Held, per Idington, Maclenuan and Duff, JJ., reversing the de- cision of the full court, that the findings of the trial judge, who had seen and heard the witnesses, should not have been reversed. — The Chief Justice and Davies, J., considered that the trial judge had not made his find- ings as the result of conclusions arrived at by him having regard to the conduct and appearance of the witnesses in giving their evidence, and, on their view of the conflict- ing testimony, were of the opinion that the full court was right in reversing the judg- ment at the trial and that the appeal from their judgment ought to be dismissed. Hayes V. Day, xli., 134. 105. Rescission of contract — Fraud — Er- ror — Agreement in writing — Formal deed, xxsiv., 102. See CONTEACT. 106. Written agreement — Collateral agree- ment by parol, xxxiv., 228. See Jury. 107. Principal and agent — Authority to mal;e contract — New term, xxxvii., 422. See CoNTEACT. 108. Sale of Ictnd — Principal and agent — Conditions — Acceptance of title — New term — Secret commission — Avoidance of contract — Fraud — Specific performance — Statute of Frauds, xxxviii., 588. See Contract. 109. Location of mineral claims — Con- struction of contract — Fictitious signature — Unauthorized use of firm name — Transfer by bare trustee — Statute of Frauds, xxxix., 378. See Contract. 110. Municipal by-law — Action to annul — Injunction — Matter in controrcrsy — Jur- isdiction. Shawinigan Hydro-Electric Co. V. Sliau-inigan Water <£ Power Co., xliii., 650. See Appeal, 7. 111. Counsel — Solicitor and client — Be- tainer — Subsequent proceedings — Habeas corpus — Evidence. Duff v. Lane, xlviii. 508. See Solicitor, 1. 112. Powers of directors — Agreement icith shipper — Freight rates. Quebec cC- Lalce St. JoHn R. R. Go. v. Kennedy, xlviii., 520. See Railways, 7. 11. Guarantee. 113. Contract — Ouarantee — Conditional sale — Rescission — Mortgagor and mortgagee —Power of sale — Creditor retaking posses- sion — Continuing liability — Appropriation of money realized by creditor — Release of debtor — Discharge of surety.] — S. leased a hotel for three years and agreed to purchase the furniture therein from plaintiffs (re- spondents) at $11,000, payable by instal- ments, $3,000 during the first year, $3,000 during the second year, and $5,000 during the third year of the term, power to retake and sell the goods, on default, being re- served. The whole debt was secured by chattel mortgage upon the furniture, and, as further security, by an agreement entered into with several other persons, the defen- dant (appellant) guaranteed the payment of one-sixth of the instalment payable dur- ing the second year of the term. It was a condition of the guarantee that it should re- main in force notwithstanding that S. might forfeit her right to the furniture un- der the conditions of any agreement or mortgage. The chattel mortgage, on breach of covenants, provided for forfeiture of all claim of S. to the furniture, and that the plaintiffs might, thereupon, retake posses- sion thereof, and, also, that all payments she should have made would then be forfeited. During the second period of the term, on default by S. to pay part of the first year's instalment, the plaintiffs resumed posses- sion of the hotel and furniture, leased the hotel to another person and sold the furni- ture for $6,500; they also notified the guar- antors of the default of S. to perform " the conditions of the purchase," that they had, in consequence, re-possessed themselves of the furniture and that they intended holding the guarantors liable for the payment guar- anteed. The money received on the re-sale was appropriated by the plaintiffs, first, in payment of a balance of the first year's in- stalment; 2ndly, in payment of the third in- stalment; and lastly, towards part payment of the second instalment, thus reducing this last amount by $105.14. After the expira- tion of the three years' term of the lease to S., the plaintiffs sued upon the guarantee, and recovered judgment against the defen- dant. — Held, per Taschereau, Girouard and Davies, JJ. (Sedgewick and Mills, JJ., contra) , that the contract represented by the agreement, guarantee and chattel mort- gage constituted a relationship of mortgagor and mortgagee between S. and the plaintiffs, and, consequently, that the guarantors con- tinued to be liable under the guarantee, not- withstanding the forfeiture of the rights of S.. and the exercise of the powers of re- suming possession and re-seale of the furni- ture. — Held, per Sedgewick and Mills, JJ., dissenting, that the transaction amounted to a conditional sale of the furniture, that the liability of S. upon her personal covenant ceased upon the exercise of the powers by the plaintiffs, and, consequently, that thf sureties were discharged, notwithstandiug the special provision that the guarantee should remain in force. — Held, also, per Sedgewick and Mills, JJ. (Davies, J., contra) , that, in either view of tlie nature of the contract, the receipt of the money on re-sale of the furniture cancolloil the debt pro tanio, and upon the second instalment falling due, the plaintiffs were bound forth- with to appropriate the amount of that instalment out of the $6,500 then ia tiieir hands, in satisfaction and discharge of the guaranteed pajTnent, thereby releasing both S. and her sureties from fi-rthcr liabiUly. Stephen v. Black et al., Cout. Cas. 217. 299 COXTEACT. 300 114. Statutory contract — Cotistriiction — Bonds of railwuu coiiii>aiiy — Oovcriiinciit guarantee.'] — ^The Government of Canada, in a contract with tiie Grand Trunk Pacific Railway Co., published as a schedule to and confirmed by 3 Edw. VII. u. 71, agreed to guarantee the bonds of the company to be issued for a sum equal to 75 per cent, of the cost of construction of the western division of its railway. By a later contract (sch. to 4 Edw. YII. c. 24) the Government agreed to implement its guarantee, in such manner as might be agreed upon, so • as to make the proceeds of said bonds a sum equal to 75 per cent, of such cost of construction. — Held, that this second contract only im- posed upon the Government the liability of guaranteeing bonds, the proceeds of which would produce a defined amount and not that of supplying, in cash or its equivalent, any deficiency there might be between the proceeds of the bonds and the said 75 per cent. Grand Trunk Pacific Railirmj Co., xlii., 505. 115. Breach of contract — Measure of dam- ages — Notice of special circumstances — Col- lateral enterprises — Loss of primary and secondary profits — Costs, xxxix., 575. See CONTKACT. 12. HiEiNC. 116. Contract of liirinii — Manager or ex-pert — Dismissal.\ — The manager of a veneer company having heard of plaintiff as a man who could usefully be employed in the business, wrote him a letter in which he stated that " what we want is a man who is a good veneer maker and who knows how to make all kinds of built up woods that are saleable, such as panels. . . . We want you to take full charge of the mill, that is, the manufacturing." In reply plaintiff said : " Would say I understand fully the making of the articles you speak of as well as numerous others with proper machines and proper men to run them." And in a sub- sequent letter he said : " I feel from all the experience I have had I have mastered the entire principle of it (the veneer business), knowing machines required for various work, what veneer has got to be when completed." Having been hired by the manager he was discharged six weeks later and brought an action for wrongful dismissal. — Held, re- versing the judgment of the Supreme Court of New Brunswick (.37 N. B. Rep. 332), that he was not hired as a business manager but as an expert in the veneer business, and as the evidence established that he was not competent he was properly discharged and could not recoVer. Allcroft v. Adams, xxxviii., 365. 117. Master and servant — Contract of ser- vice — Termination hy notice — Incapacity of servant — Permanent disalilitij — Findings of jury — Weight of evidence. x.xxiv., 366. See Master and Servant. 13. Invalidity. 118. Construction of railway — Injunction — Interested party — Public corporations — Franchises in public interest — Lapse of chartered powers — " Railway " or " tram- loay " — Agreement as to local territory — Invalid contract— PuliUc policy — Donmiioii Railway Act — Work for general advantage of Canada — Queieo Railwory Act — Quelicc Municipal Code — Limitation of powers.] — An agreement by a corporation to abstain from exercising franchises granted for the promotion of the convenience of the public is invalid as being contrary to public policy and cannot be enforced by the courts. Montreal Park and Jslaind Railway Co. v. Chateau- guay and Northern Railway Co., xxxv., 48. And see Railways. 119. Promissory note — Security for debt — Husband and wife — Parent and child.] — C, a man without means, and W., a rich money lender, were engaged together in stock speculations, W. advancing money to C. at a high rate of interest in the course of such business. C. being eventually heavily in the other's debt, it was agreed between them that, if he could procure the signatures of his wife and daughter, each of whom had property of her own, as secur- ity, W. would give him a further advance of ifl,000. Though unwilling at first the wife and daughter finally agreed to sign notes in favour of C. for sums aggregating over $7,000, which were delivered to W. Neither of the makers had independent advice. — Held, reversing the judgment appealed from, Taschereau, C.J., dissenting, that though the daughter was twenty-three years old she was still subject to -the dominion and influence of her father and the contract made by her without independent advice was not binding. — Held, also, Taschereau, C.J., and Killam, J., dissenting, that his wife was also subjected to influence by C. and en- titled to independent advice, and she was. therefore, not liable on the note she signed. — Held, per Sedgewick, J., that the evidence produced disclosed that the transaction was a conspiracy between C. and W. to procure the signatures of the notes and, that the wife of C. was deceived as to his financial position and the purpose for which the notes were required, therefore the plaintiff could not recover. Cox v. Adams, xxxv., 393. 120. Construction of deed — Ambiguity- Discharge of debtor — Illegal oonsideration — Right of action.] — Where the language of an instrument is ambiguous or obscure, the intention of the parties should be ascer- tained by consideration of the circumstances attending the execution of the agreement. — A deed of settlement between B. and a bank dclared that he Owed the bank $4,731.61 for interest on an advance in respect to a lot- tery scheme and a further sum of $18,7fi2.02 for advances on an account for the pur- chase of stock, two notes being given for these amounts respectively, and the shares of stock being pledged as security tor the large note only. Subsequently, the direct- ors of the bank passed a resolution author- izing the discharge of B., on payment of $15,000 by one V., " jusqu'a ccmcurrenoe. de la dite somme de $15,000," and the transfer of the shares to V. This resolution was followed bv a deed of compromise, V. paj' ing the $15,000 and obtaining a transfer of the shares, and it was thereby declai™ 301 CONTEACT. 302 that, by the transaction, B. was discharged in so far as concerned the banli's advances on the stock account " vis-d-vis la bmique des avarices qu-elle dui a faites du chef susdit mentionnies en iin acte de regle- ment," etc., the resolution being annexed ^and the deed of settlement referred to for 'imputation of the payment, and V. was to become creditor of B. under conditions men- tioned, " jusgu'd, concurrence de $15,000," the note which had not become due and the securities being allowed to remain in pos- session of the bank. In an action by D., to whom the notes held by the tank were as- signed : — Held, reversing the judgment ap- pealed from, that the effect of the deed of compromise was to discharge B. merely to the extent of the $15,000 on account of the larger note ; and further, affirming the judg- ment appealed from, that no action could lie upon the smaller note as it represented interest on a claim in relation to a contract of an illegal nature. L' Association St. Jean Baptiste v. Brault (30 Can. S. C. R. 508) followed. Deserres v. Brault. xxxvii., 613. 121. Conveyance of land — Description of property — Partition — Petitory action — " Quebec Act, 1774 " — Introduction of Ep-g- lish criminal law — Champerty — Mainten- ance — Affinity and consanguinity — Parties interested in litigation — lAtigious rights — Pacte de quota litis — Illegal consideration — Specific performaMce — Retrait successoral — Pleading, xxxiv., 24. gee Champerty. 122. Sale of goo'ds — Contract hy corres- pondence — Statute of Frauds — Delivery — Principal and agent — Statutory prohibition — Illicit sale of intoxicating liquors — Know- ledge of seller — Validity of contract, xxxiv., 132. See CONTEACT. 123. Solicitor and client — Confession of judgment — Agreement with counsel — Over- charge, xxxvi., 168. iSee SoLiciTOE. 124. Will — Testamentary capacity — Evi- dence — Art. 8S1 C. C— Marriage contract — Duress, xxxv., 477. See Mabeiage Conteact. 125. Incorporation of company — Secret agreement — Illegal consideration for shares — Fraud — Breach of trust, xxxvii., 324. See Company. 126. Mortgage — Money advainced to con- struct huildings — Lien for materials sup- plied — Payment to contractor — Transac- tions in fraud of mortgagee's rights — Re- demption — Costs, xxxviii., 557. See MOETGAGE. 127. Conitract for limited tickets — Right of action iy municipality — Specific perform- ance — Injunction — Parties, xxxlx., 673. See CONTEACT. 128. Appeal — Actio Pauliana — Contro- versy involved — Title to land — Supreme Court Act, s. Jfi. xli., 80. See AppEAi,. 129. Municipal corporation — Public lib- rary — Offer of funds — Special legislation — Municipal powers, xliii., 478. See Municipal Corpoeation. 1.30. Payment hy insolvent — Preference — Recovery back by curator — Oamhig transact tion — Illegal contract — Right of action — Arts. 1031, 10S2, 1036, 1927 C. G.—Arts. 853 et seq., C. P. Q., xlix., 91. See Insolvency. 131. Municipal councillor — Interest in municipal contract — -Money received under prohibited contract — Recovery of funds — Right of action, xlix., 271. See Municipal Corporation. 132. Company — Dominion corporation — Provincial registration — Juristic disability — Right of action. — Currying on business within province — Legislative jurisdiction — R. S. Sask. 1909, c. 73, ss. .1, 10— yon-com- pliance with S. C. Rules — Costs, Lund Refrig. v. Sask. Creamery, li., 400. See Company, 2. 133. Municipal corporation — Powers of council — nighuays — Exclusive privilege — Necessity of by-law — Validity of contract — Right of action — Status of plaintiff — Share- holder in joint-stock company — Ratepayer — Special injury — Public interest — Prosecu- tion hy Attorney-General — Practice — Art. 978, C. P. Q. Robertson v. Montreal, lit., 30. See Municipal Corporation. 14. Married 'SYoman. 134. Htisband and wife — Contract — Sepa- yatc estate — Security for husband's debt — Independent advice — Stare decisis.'] — The confidential relations between husband and wife are such that where the latter conveys or encumbers her separate property for her husband's benefit she is entitled to the pro- tection of independent advice ; without that her action does not bind her. Cox v. Adams (35 Can. S. C. R. 393) followed, Idington, J., dissenting. — Only in very exceptional circumstances should the Supreme Court refuse to follow its own decisions. — .Judg- ment of the Court of Appeal (17 Out. L. R. 436) reversed. Stuart v. Bank of Montreal, xli., 516. 135. Donatio inter vivos — Ante-nuptial contract — Gift to irife — Payment at death of husband — Institution contractuelle — On- erous gift.] — An ante-uuptial contract pro- vided that " in the future view of the said intended marriage he, the said Edward O'Reilly, for and in consideration of the love and affection and esteem' which he hath for and beareth to the said Jliss Eliza Petrie, hath given, granted and confirmed and by these presents doth give, grant and confirm unto the said Miss Eliza Petrie, accepting hereof. . . the sum of twenty-five thousand dollars, currency of Canada, pay- able unto the said Miss Eliza Petrie by the heirs, executors, administrators or assigns of him the said Edward O'Reilly, the pay- 303 CONTRACT. 304 ment whereof shall become due and demand- aible after the death of him the said Edward O'Reilly." The parties were married and on the death of the said 0'E.eilly his wife claimed the right to rank on his estate as a creditor for the said sum of $25,000, which claim was contested by the general body of creditors who had all become such after said contract was made. — JSeld, affirming the judgment of the Court of Appeal (21 Ont. Li. K. 201), that this clause in the eon- tract must be construed as a donatio inter vivos creating a present debt in favour of the future wife, payment of which was de- ferred; that, in the absence of proof of fraud, such a contract could not be attacked by subsequent creditors ; and that the wife was entitled to rank on the estate for the amount of said gift. — Held, per Girouard, J., that the donation was one " a titre on4reux!." Garland, Son ci Go. v. O'Reilly, xliv., 197. 15. Mistake. 136. Mistalce — Misrepresentation — Lay agreement — Mortgage — Execution of docu- ments iy illiterate persons — Evidence.'} — The plaintiffs leased mining rights underlay agreement to the defendants providing for division of profits and payment of an exist- ing debt, and for advances to be made out of the clean-ups on dates therein mentioned, a mortgage to be given on the dumps to secure the advances. Owing to some inac- curacy in the lay agreement, a new lay agreement was executed at the same time as the mortgage. The mortgage provided for payments at earlier dates than the lay agreement, and was not read over to the defendants, who were unable to read, and had requested that it should be read over to them. In an action on the mortgage, evidence was given that a document signed on that date was represented to be in terms similar to the lay agreement as first drawn, but it might, possibly, have been the new lay agreement that was thus spoken of, and it appeared that, although the defendants be- came aware of the difference in the terms of payment mentioned in the mortgage, and complained of this to the plaintiffs' agent, they continued to work on the lay, assum- ing that the altered terms of payment would not be insisted upon : — Held, reversing the judgment appealed from, Sedgewick and Killam, JJ.. dissenting, that there was not sufficient evidence of acquiescence in the al- tered terms of payment, and that, as the evidence showed that defendants were il- literate and the mortgage had not been read over to them on request, and they had been misled as to its contents, they could not be bound by its altered provisions as to the payments. Letourneau v. Garbonneau, XXXV., 110. 137. Misrepresentation — Latent defect — Fraud — Rescission, xxxiv., 102. See CONTBACT. 16. Novation. 138. Contract — Novation — Sub-contractor — Order from contractor on owner — Evi- dence.} — T. was contractor for building a house and F. sub-contractor for the plumb- ing work. When F.'s work was done he ob- tained an order from T. on the owner in the following terms : " Please pay F. the sum of $705, and charge to my account on building, Lucknow Street." F. took the order to ftie owner who agreed to pay if the architect certified that the work had been performed. F. and T. saw the owner and architect together shortly after and on be- ing informed by the latter that the account was proper and there were funds to pay it the owner told F. that it would be all right and retained the order when F. went away. F. filed no mechanic's lien, but other sub-con- tractors did the next day, and T. assigned in insolvency. In an action by F. against the owner : — Held, Davies, J., dissenting, that there was a novation of the debt due from the owner to T. ; that it was not merely an agreement by the owner to an- swer to F. for T.'s debt, nor was the order to be treated as a bill of exchange and ac- cepted as such. Farquhar v. Zwicker, xlL, 30. 17. Penal Clause. 139. Pleading — Gross-demand — Con- struction of contract — Liquidated damages — Clause in agreement — Estoppel, xxxvi., 347. See Contract. 18. Pkincipat, and Agent. 140. Broker — Sale of land — •Commission, — General employment — Principal and agent — Introduction of purchaser — Interference by principal — Qudntum meruit — Variation of written contract — Evidence — (Alta.) 6 Edw. VII. c. 27.] — The Alberta statute of 1906, 6 Edw. VII. c. 27, provides that no action shall lie to recover any commission for services in connection with the sale of land except upon a contract therefor in writ- ing signed by the person sought to be charged or by his agent thereunto author- ized in writing.' C. by duly signed memor- andum' authorized H. to sell a section and a half of land, containing 960 acres, at the named price of $35 per acre, and to pay him a commission on the sale at the rate of 5 per cent. In attempting to make a sale H. introduced T. to C. and, after they three had inspected the land together, T. made an offer to C. to purchase the section alone at $40 per acre provided certain other property should be taken in exchange as patt pay- ment. This proposition was accepted by C. and he sold the section alone to T. on those terms. — Held, that the sale effected was an entirely new contract which was in no manner referable to the written agreement respecting commission on a sale for a price in money and, as there had been no written contract respecting remuneration to tb6 broker in respect of the transaction which took place he could not recover compensa- tion for the services rendered by him either by way of commission or as quantum mer- uit. — The judgment appealed from (9 D. L- R. 381 ; 3 West. W. R. 923) was reversed, 305 CONTRACT. 306 Duff and Brodeur, J J., dissenting. — Per Duff, J. — The broker should be held strictly to the terms of the written agreement which was drafted by himself; it did not consti- tute a general authority to sell the lands therein described; he could not, therefore, recover remuneration for his services by way of commission as therein provided. Never- theless, as such use was made of the intro- duction of the purchaser that the broker was prevented effecting a sale according to the terms of his agreement, the conduct of the principal in that respect entitled the agent to recover compensation by way of quantum meruit. — Per Brodeur, J. — The broker had, under the agreement, a general authority for the sale of the lands for which he found and introduced the purchaser; therefore, he should not be denied compensa- tion for his services on account of the con- duct of the owner in carrying out the sale on terms different from those to which he had been restricted by the agreement. (Leave to appeal to Privy Council was re- fused, 20th March, 1914.) Gomo v. Ser- ron, xlix., 1. 141. Contract by correspondence — Deliv- ery — Statutory prohibition — Illicit sale of intoxicating liquors — Knowledge of seller — Validity of contract — Evidence, xxxvii., 55. See CONTEACT. 142. Joint stock company — Subscription for shares — Principal and agent — Authority of agent — • Conditional agreement, xxxiv., 508. See Company. 143. Principal and agent — Broker's com- mission — Sale of land^— Procuring purchaser — Company law — Commercial corporation — Power of general manager, xxxv., 301. See Peincipal and Agent. 144. Sale of lamd — Authority to make con- tract — Specific performance, xxxvii., 422. See CONTEACT. 145. Ships and shipping — Material used in construction — Sale of goods — Principal and agent — Misrepresentations — Mistake —Conversion — Trover — Evidence — Mis- direction — Hew trial — Ship's husband — Pledging credit of owners — Necessary out- fitting at home port. Gout. Gas. 131. See Ships and Shipping. 146. Principal and aigent — Broker selling on grain exchange — Contract in broker's name — Liability of principal — " Futures " — " Margins " — " Options " — Board rules — Indemnity, xli., 618. See Beokee. 147. Principal and agent — Commission on sale of land— Introduction of purchaser — Efficient cause of sale — Completion of con- tract on aiUered terms, xliv., 395. See Broker. 148. Crown lands — Location — Public policy — Evasion of statute — B. C. " Land Act," 8 Edw. VII. c. 30, ss. 34, 36— Sale of Croivn lands — Principal and agent — Com- mission on sales — Quantum meruit — Tainted contract, xlviii., 588. See Crown Lands. 149. Fire insurance — Blank application — General agent — Misrepresentation — Know- ledge of company — Over-valuation — " Dwel- ling house " — " Lodging house." Mahomed V. Anchor Fire, etc., xlviii., 546. See Insurance, Fire, 1. 150. Broker — ■ Dealings " on change " — • Speculative options — Principal and agent — Liability for contracts by agent in his oiiM name — Privity of contract — Purchase and sales on " margin " — Settlements through clearing house — Wagering contract ■ — Malum prohibitum ■ — Criminal Code, s. 231, xlix., 595. See Broker. 1.51. Broker — " Real estate agent " — Sale of land — " Listing " on broker's books — Principal and agent — Authority to make contract, li., 319. See Principal and Agent. 152. Broker — " Real estate agent " — Sale of land — " Listing " on broker's books — Principal and agent — Authority to make contract. Peacock v. Wilkinson, li., 319. See Broker. 19. Public Policy. 153. Public policy — Restraint of trade — Combination ■ — Conspiracy — Construction of statute — "Criminal Code," s. 498 — Words and phrases — " Unduly " preventing competition, etc. — Monopoly.^ — A contract between dealers fixing prices to be paid by them for specified articles or commodities which may be the subject of trade and com- merce with the object of restricting compe- tition and establishing a monopoly therein, constitutes an agreement unduly to prevent or lessen competition within the meaning of section 498 of the Criminal Code, B.. S. G. 1906. e. 146, and is not enforceable between the parties. Judgment appealed from (20 Man. R. 178) reversed, Davies, J., dissent- ing. — Per Davies, J., dissenting. — As the agreement was not, in the circumstances, void at common law as being unreasonably in restraint of trade it did not violate the statute. Weidman v. Shragge, xlvi., 1. 154. Franchise in public interest — " Rail- way " or " tramway " — Public corporations — Lapse of chartered poivers — Agreement us to local territory — Invalid contract — Do- minion Railway Act — Work for general ad- vantage of Canada — Quebec Railways Act — Municipal Code — Limitation of poivers, XXXT., 48. See Conteact. 20. Railways and Tramways. 155. Municipal franchise — • Operation of tramways — Suburban lines — Earnings outside municipal limits — Construction of 307 CONTEACT. 308 contract — Payment of pcrceiito" within the meaning of that provision ; but that, on the merits, the ap- peal ought to be dismissed. In re McNutt, xlvii., 259. 20. Indictment for murder — Trial — Charge to jury — Misdirection — Constructive murder — Natural consequence of act — A'ew trial.] — On the trial of an indictment for murder of one Kenneth Lea it was proveil that the prisoners, who had been drinking, came on the deceased's lawn and commenced to shout and sing and use profane and in- sulting language towards him. He twice warned them away, and finally appeared with a loaded gun theratening to shoot. A rush was made towards the verandah where he stood, when he took hold of the barrel of the gun and struck one of the prisoners with the stock. The gun was discharged into his body and there was evidence that the pris- oners then maltreated him and his wife. He was taken to a hospital in Halifax where he died shortly after. The trial judge in charging the jury instructed them that the prisoners were doing an unlawful act in trespassing on the property of deceased, and that if they were actuated by malice it would be murde'r, if not it was man- slaughter, drawing their attention especially to sections 256 and 259 (b) of the Criminal Code. The prisoners were found guilty of murder. On appeal from the decision of the Supreme Court of Nova Scotia on a re- served case : — Held, that the above direction to the jury ignored the requirements of the Code formulated in sub-section (d) of sec- tion 259, to which the Judge should also have drawn their attention directing them to find whether or not the prisoners knew, or ought to have known, that their acts were likely to cause death, and his failure to do so left his charge open to objection and constituted misdirection for which the prisoners were entitled to a new trial. Graves v. The King, xlvii., 568. 21. Habeas corpus — Common law offences — Construction of statute — " Supreme Court Act," B. 8. C. 1906, c. 139, s. 62— Jurisdic- tion of Supreme Court judges.] — The juris- diction of judges of the Supreme Court of Canada in respect of habeas corpus ad sub- jiciendum extends only to cases of com- mitment on charges of offences which are criminal by virtue of statutes enacted by the Parliament of Canada ; it does not extend to cases of commitment for offences at com- mon law or under statutes enacted prior to Confederation which are still in force. Re Sproule (12 Can. S. C. R. 140) referred to. — The offence of housebreaking as described in the Imperial statute, 7 & 8 Geo. IV. ch. 29, sec. 15, became part of the criminal law of British Columbia on the introduction of the criminal law of England into that col- ony by the Ordinance of 19th November, 1858, continued to be so until the Union of the province with Canada, and since then by virtue of sec. 11 of the " Criminal Code," and it is not an offence to which sec. 62 of the '• Supreme Court Act," R. S. C. 1906, c. 139, has application. Re Charles Dean, xlviii., 235. 22. Perjury — Form of oath.] — A witness who testifies to what is false is guilty of perjury, although, without being asked if he had any objection to being sworn in the usual manner, but without objecting to the form used, he was directed to take the oath by raising his right hand instead of kissing the Bible. Curry v. The King, xlviii., 532. 347 CEIMINAL LAW. 348 23. Constitutional lata — -Legislation re- specting Orientals — Chinese places of busi- ness — Employment of white females — Stat- ute.— 2 Geo. V. c. 17 (Sask.)—"B. N. A. Act, 1867," ss. 91, 92 — Local and private matters — Property and civil rights — Natura- lized British subject — Conviction under provincial statute.'] — The provisions of the statute of the Province of Saskatchewan, 2 Geo. V. c. 17, containing a prohibition against the employment of white female labour in places of business and amusement kept or managed by Chinamen, sanctioned by fine and imprisonment, is intra vires of the Provincial Legislature. Union Colliery Co. V. Bryden ([1899] A. C. 5S0), and Cunningham v. Tomey Homma ( [1903] A. C. 151), referred to.— Per Duff, J.— The imposition of penalties for the purpose of enforcing the provisions of a provincial stat- ute does not, in itself, amount to legisla- tion on the subject-matter of criminal law within the meaning of item 27 of the 91st section of the " British North America Act, 1867." Hodge v. The Queen (9 App. Cas. 117), The Attorney-General of Ontario v. 'l%e Attorney-General for the Dominion ([1896] A. C. 348), and The Attorney-Gen- eral of Manitoba v. The Manitoba License Holders' Association ([1902] A. C. 73), referred to. — ^The judgment appealed from (4 West. W. R. 1135) was affirmed, Iding- ton, J., dissenting. — '(Leave to appeal to the Privy Council refused, 19th May, 1914). Quong-Wing v. The King, xlix., 440. 24. Stated case — Extension of time — No- tice of appeal — Criminal Code, ss. 901, 1014, 1021, 1022, 1024.} — Where, on an applica- tion under section 901 of the Criminal Code, the court, in the exercise of judicial discre- tion, has refused to allow a postponement of the trial of the person indicted, there can be no review of the decision by an appellate court and the question presented does not constitute a question of law upon which there may be a reserved case under the pro- visions of section 1014 of the Criminal Code. Judgment appealed from (5 W. W. R. 1229 ; 26 West. L. R. 955) affirmed. The Queen V. Charlesworth (1 B. & S. 460) ; Wiiisor V. The Queen (L. R. 1 Q. B. 390) ; Rex v. Lewis {iS L .J. K. B. 722) ; Bex v. Blyth (19 Ont. L. R. 386) ; Reg. v. Johnson (2 C. & K. 354) ; and Rex v. Slavin (17 U. C. C. P. 205) referred to. Mulvihill v. The King, xlix., 587. 25. Perjury — Form of oath — Practice — Voire dire.} — After examination on voire dire, in a judicial proceeding, a person called as a witness (with the assistance of an in- terpreter) went through a ceremony ac- cepted as the taking of an oath in the form usual with bis race and class, knowing and intending that his testimony should be re- ceived and acted upon as evidence given under oath. — Held, that on prosecution for perjury in giving his testimony the witness could not set up the defence that he had not been duly sworn. Bex v. Lai Ping (11 B. C. Rep. 102) ; The Queen's Case (2 Brod. & Bing. 284) ; Omyohund v. Barker (1 Atk. 21) ; Attorney-General v. Bradlaugh (14 Q. B. D. 667), and Curry v. The King (48 Can. S. C. R. 532), referred to. — Judgment appealed from (19 D. L. R. 313; 30 West. L. R. 65) affirmed. Shajoo Ram v. The King, li., 392. 26. Indictment — Separate counts — Ver- dict — Conspiracy — Extraditable offence — Inadmissible evidence — Conviction — In- consistency " — Irregularity of procedure Charge to jury — Address of counsel — Sub- stantial wrong or miscarriage — New trial "Criminal Code," s. 1019 — Penalty.] — On an indictment containing several counts, in- cluding charges for theft, receiving stolen property and obtaining money under false pretences, in respect of which the person accused had been extradited from the United States of America, evidence was admitted on behalf of the Crown, for the purpose of showing mens rea, which involved participa- tion of the accused in an alleged conspir- acy. The principal objections urged against a conviction upon the charges mentioned were (a) that by the manner in which the trial had been conducted the jury may have been given the impression that the accused was on trial for conspiracy, a non-extradit- able offence; (b) that misstatements and inflammatory observations had been made by counsel for the Crown in addressing the jury ; and (c) that, in his charge, the trial judge had failed to correct impressions which may have been thus made on the minds of the jury or to instruct them that portions of the evidence admitted- in regard to other counts ought not to be considered by them in disposing of the charge of obtaining money under false pretences. — Held, that, as there was sufficient evidence to support the verdict of the jury on the charge of ob- taining money under false pretences, quit'; apart from the {regularities alleged to have taken place at the trial, no substantial wrong or miscarriage had been occasioned, and there could be no ground for setting aside the conviction or directing a new trial under the provisions of section 1019 of the Criminal Code. — Judgment appealed from (11 West. W. R. 46), affirmed. Kelly v. The King, liv., 220. 27. Constitution of grand jury — Bias — Presentment of true bill — Presence of ac- cuser on grand jury — Prejudice — Criminal Code, s. 899 — Evidence.] — The appellant was indicted for perjury. The complainant had been summoned to act as a grand juror for the assizes at which the trial took place. The complainant was present with the grand jury when it was charged and when the pre- sentment of ^ true bill was made. While the bill was under consideration by the grand jury one of the jurymen to whom the complainant had stated that it was a de- plorable case, but it had come to the pass that either he or the accused would have to leave the town, repeated this statement to other grand jurors. In the reserved case it was stated by the trial judge that the com- plainant had in no manner taken any part in the deliberations of the grand jury on the indictment. — jffeld, affirming the judg- ment appealed from (Q. R. 25 K. B. 275), Anglin and Brodeur, JJ., dissenting, that, in the circumstances stated in the reserved case, neither the fact of the presence of the complainant as a member of the grand jury nor the statement made by him constituted a well-founded objection to the constitution 34y CEOWN. 350 of the grand jury which had passed upon the indictment, which therefore could not be quashed under the provisions of section 899 of the Criminal Code. — Per Davies, Anglin and Brodeur, JJ. : — ^An indictment preferred after consideration in which a grand juror disqualified by interest had participated should be quashed. Beat v. Hayes (9 Can. Grim. Cas. 101) disapproved. — Per Anglin and Brodeur, J J. — The reasonable infer- ence from the facts stated in the special case is that the complainant was present with the grand jury during their deliberation upon the bill against the accused. The statement made by the complainant to the juryman B., and by him repeated to his fellow-jurymen, was calculated to influence them. It is impossible to know whether the ^complainant's presence and his statement, so repeated, did or did not affect the grand jury adversely to the accused. He is en- titled to have it assumed that they did. He was thereby deprived of his right to have his ease passed upon by a duly qualified grand jury which was not improperly biased, and he thereby suffered prejudice within section 899 of the Criminal Code which warrants the quashing of the indictment. Beg V. Justices of Hertfordshire (6 Q. B. 753) ; The Queen v. Inhabitants of Upton St. Leonards (10 Q. B. 827) ; The Queen V. Gorhet et al. (1 P. E. I. Rep. 262) , and Reg. V. McOuire (4 Can. Grim. Cas. 12) referred to. — Per Anglin, J. — On a motion to quash an indictment found by_ a grand jury it is improper to admit evidence of what took place in the grand jury-room during the inquiry in regard to the indict- ment. Reg. V. Justices of Hertfordshire (6 Q. B. 753) ; Rex v. Lancashire Justices (75 L. J. K. B. 198) ; Reg. v. Meyer (1 Q. B. 173) and Reg. v. London County Council ((1892) 1 Q. B. 190) referred to. Veron- neau v. The King, liv., 7. 28. Criminal law — Refusal of reserved case — Appeal to Supreme Court of Canada — Conviction in Yukon Territory — Admis- ■lion of evidence — Procedure at trial. La- telle v. The King, Cout. Cas. 282. 29. Habeas corpus — Criminal appeals — Grand jurors — Selection of talesmen — Jurisdiction. Be Menard, Cout. Cas. 313. 30. Principal and agent — Gambling in stock — Advances by agent — Brokerage — Criminal Code, 1892, s. 201, xxxv., 380. See Broker. 31. Extradition — Prohibition — Agent — Supreme Court Act — Construction of stat- ute — Public policy — Criminal proceedings, xxxvi., 347. See EXTBADITION. 32. Canada Temperance Act — Conviction —"Criminal case"—B. 8. C. {1886) e. 135, s. 32 — Habeas corpus — Penalty — "Not less than $50 " — Conviction for $200 — Imposition of fine for first offence — Powers of Supreme Court judge—Reference of am- plication to full court, xxxviii., 394. See "Canada Tbmpebance Act." 33. Constitutional law — Penitentiaries — Imprisonment of criminals — Expense of maintenance — B. N. A. Act, 1867 — Legis- lative jurisdiction of Parliament — Provin- cial legislation — Practice on references by Governor-General in Council, Cout. Cas. 24. See Constitutional Law. 34. Summary convictions and orders ■ — Procedure by magistrate — Delay in issuing commitment — Term of imprisonment — Com- mencement of sentence — " Canada Temper- ance Act, 1878," Cout. Cas. 71. See Habeas Cokpus. 35. Construction of statute — Quebec " Sunday Act " — Prohibition of theatrical performances — Local, municipal and pulice regulations — ■ Legislative jurisdiction ■ — Validation by federal legislation — " Lord's Day Act," xlvi., 502. See Constitutional Law. 36. Judgment appealed from (19 D. L. R. 313; 30 West. L. R. 65) affirmed. Shajoo Ram V. The King, li., 392. 37. Restraint of trade — Contract- -Con- sideration — Crim. Code, s. Ji98. MacJSitun V. Toronto Gen. Trusts Corp., liv., 38], See CONTEACT. 38. Contract — Consideration — Settle- ment of action — Statute of Frauds — Trade agreement — Restraint of trade — Criminal Code, s. 498, liv. See Contract. CBOSS-BEMAND. Pleading — Compensation — Arts. 3, 203, 205, 207 — G. P. Q. — Practice— Damages — Construction of contract — Liquidated datp- ages — Penal clause — Arts. 1076, 1187, 1188, C. C. — Estoppel — Waiver, xxxvi., 347. See Pleading. CKOWN ATTORNEY. Municipal corporation — Statutory duty — County officers — Discretion ■ — Mandamus. Bodd V. County of Essex, xliv., 137. 10. CBOW^N. Contract, 1-2, Escheat and Foefeiture, 3. Highways, Bridges and Ferries, 4. Negligence, 5-12. Officers and Servants of the Crown, 13-16. Public Lands and Timber, 17-51. Public Works, 52-53. Railways and Canals, 54-61. Waiver and Estoppel, 62-63. Waters, Fisheries, 64-69. 351 CEOWN. 352 1. CONTKACT. 1. Delivery of goods — Conditions as to quality, weight, etc. — Inspection — Rejection — Conversion — Sale iy Crown officials — Liability of Grown — Deductions for short weight — Costs. Boulay v. The King, xliii., 61. See Contract. 2. Contract — Sale of hay Bejection^— Conversion — Damages — Counterclaim — Evidence. Poirier v. The King, xM., 638. 2. Escheat. 3. Devolution of estates — Intestacy — Fail- ure of heirs — Escheat — Royalty — Bona va- cantia — - Dominion lands — Constitutional law — Surrender of Hudson Bay Company's lands — Construction of statute — "B. N. A. Act, 1861 " — " Dominion Lands Act " — " Land Titles Act " — " Alberta Act " — (Alta.) 5 Oeo. V. v. 5, Intestate estates, liv. See Escheat. 3. Highway. 4. Highway — Road allowances — Reser- vations in township survey — General in- structions — Model plan — Evidence, xxxiv., 513. ^ See Evidence. 4. Negligence. 5. Negligence of fellow-servant ■ — Opera- tion of railway — Defective switch — Puhlic work^-Tort — Liability of Crown — Right of action — Ea>chequer Court Act, s. 16 (c) — Lord Campehell's Act — Art. 1056 C. 0.] — In consequence of a broken switch, at a sid- ing on the Intercolonial Railway (a public work of Canada) , failing to work properly, although the moving of the crank by the pointsman had the effect of changing the signal so as to indicate that the line was properly set for an approaching train, an accident occurred by which the locomotive engine was wrecked and the engine-driver killed. In an action to recover damages from the Crown, under article 1056 of the Civil Code of Lower Canada : — Held, affirm- ing the judgment appealed from (11 Ex. C. R. 119), that there was such negligence on the part of the officers and servants of the Crown as rendered it liable in an action in tort ; that the " Exchequer Court Act," 50 & 51 Vict. c. 16, s. 16 (c), imposed lia- bility upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court of Canada to entertain the claim for damages; and that the defence that deceased, having obtained satisfaction or indemnity within the meaning of article 1056 of the Civil Code, by reason of the annual contribution made by the Railway Department towards The Intercolonial Railway Employees' Re- lief and Insurance Association, of which de- ceased was a member, was not an answer to the action. Miller v. The Grand Trunk Bail- way Co. ( [1906] A.C. 187) followed. (Leave to appeal to Privy Council was refused; 18th July, 1908.) The King v. Armstrong xh, 229. 6. Negligence — Injury on public work — Government railway — Fire from engine — R. S. 11906] c. HO, s. 20 (c)— Words and phrases.] — The words "on a public work" in sub-sec. (c) of R. S. [1906] c. 140, s. 20 (The Exchequer Court Act), are descriptive of locality and to make the Crown liable for injury to property under that sub-sec- tion such property must be situated on the work when injured. Chamierlin v. The King, xlii., 350. 7. Public work — Damage to adjacent lands — Negligence — Liability of — " Exchequer Court Act," s. 20 — Litigious rights — Bar to action — " Bideau Canal Act," 7 Geo. IV. c, 1 (O.C.) — Limitation of actions.] — The Crown is not liable, under sec. 20, sub-sec. (c) of the "Exchequer Court Act" (E. S. C. [1906] c. 140), for injury to property by negligence of its servants unless the pro- perty is on a public work when injured. Chamberlin v. The King (42 Can. S. C. E. 350), and Paul v. The King (38 Can. S. C. R. 126), followed.— Per Fitzpatrick, C.J.— Where property is purchased for the pur- pose of enforcing a claim against the Crown for injury thereto, such purpose constitutes a bar to the prosecution of the claim. — Per Brodeur, J. — Section 26 of the " Eideau Canal Act," 8 Geo. IV., c. 1 (U. C), pro- viding that any plaint brought against any person or persons for anything done in pur- suance of said Act must be commenced within six montlis next after the act com- mitted, applies to proceedings against the Crown though the Crown was not mentioned and no claim against it founded on tort could then be prosecuted. Idington, J., contra. Anglin, J., dubitante. Olmstead v. The King, liii., 450. 8. Negligence — Injury to "property on public work " — ■ Jurisdiction — B. S, G. [1906] c. UO, s. 20 (6) and (c).] —To make the Crown liable, under sub-sec. (c) of section 20 of the " Exchequer Court Act" (R. S. C. [1906] e. 140), for injury to pro- perty, such property must be on a public work when' injured. Chamberlin v. Tin King (40 Can. S. C. R. 350) and Pom! v. The King (38 Can. S. C. R. 126) followed. Letourneau v. The King (33 Can. S. C. E. 335) overruled. — Injury to property by an explosion of dynamite on property adjoining a public work is not " damage to property injuriously affected by the construction of a public work" under sec. 20 (6) of the Act Piggott V. The King, liii., 626. 9. Government railways — Conatruetion and maintenance — Level crossings — Begvlar tions by Governor in Council — Construction of statute — "Government Railways Act," K. S. C. 1906, c. 36, ss. IG, 49, 5\— Negligence ■ — Act of third person — Liability of Grown for damages — Highways.] — ^The right to construct Government railways across high- ways conferred by section 16 of the " Gov- 353 CBOWN. 354 eminent Railways Act," K. S. C. 1906, c. 36, is subject to the continuing duty im- posed upon tlie Government railway authori- ties that, in regard to the relative levels of the railway tracks and the highways, so long as any such crossings are maintained on the level of the roads the railway tracks shall not rise or sink more than one inch above or below the surface of the highways. — Regulations made by the Governor in Council under the provisions of section 49 and falling within section 54 of the "Gov- ernment Railways Act," R. S. C. 1906, c. 36, must not conflict with specific enact- ments of the statute; a regulation which may be the cause of conditions existing which are inconsistent with explicit require- ments of the statute must be construed as subordinate to an implied proviso that noth- ing therein shall sanction a departure from any special requirement of the statute : In- stitute of Patent Agents v. Lockwood ( (1894) A. C. 347) and Booth v. The King (51 Can. S. 0. R. 20) referred to.— A level crossing of the Intercolonial Railway had planking between the rails which raised the roadbed so that the tracks did not rise more than an inch above the surface of the high- way. Under a regulation for the guidance of trackmasters and trackmen, made by the railway authorities, the planks were re- moved during the winter season to permit safe operation of snowploughs and flangers, during this season the space occupied by the planking being filled by snow and ice. In April, before tlie use of snowploughs and flangers had been discontinued, the ice and snow melted and left the tracks about six inches above the roadbed. After the usual inspection by the trackmen, some unknown person placed a fence-rail against one of the tracks to assist sleighs over the obstruction and, later in the day, suppliant in driving his sleigh along the highway had his foot crushed between the fence-rail and the track and sought damages from the Crown for the injuries sustained : — Held, that the condi- tion of the crossing constituted negligence of officers and servants of the Crown while acting within the scope of their duties and employment in the construction and main- tenance of the railway in consequence of which the Crown was liable in damages not- withstanding that the resulting injury might not have occurred but for the inter- vening act of some unknown third person : Latham v. R. Johnson d Nephew ((1913), 1 K. B. 398), referred to. Belanger v. The King, liv., 265. 10. Navigation of inland waters — Collision — Government ships and vessels — " Pullie ■work " — " The Exchequer Courts Act," s. 16 — Construction of statute — Right of ac- tion, xxxvlii., 126. See Negligence. 11. Negligence — Tort — Liability of the Crown— Demise of the Crown — Personal ac- tion — Release — Operation of railway — Common employment — Exchequer Court Act, 50 & 51 V. v. 16, s. 16 (c)- ' to Privy Council, xli., 71. See Negligence. S.C.D. — 12 12. Injury on puilio work — Government railway — Fire from engine — R. S. G. 1906, c. lliO, s. 20 (c). Chamherlain v. The King, xlii., 350. See Public Wokk. 5. Ofpiceks and Servants. 13. Negligence — Common employment — Defence by Crown — Workmen's Compensa- tion Act.] — The Manitoba Workmen's Com- pensation Act does not apply to the Crown. Idington, J., dissenting. — In Manitoba the Crown as represented by the Government of Canada may, in an action for damages for injuries to an employee, rely on the defence of common employment. Idington, J., dis- senting. Ryder v. The King, xxxvi., 462. 14. Taxing costs to the Crown — Fees to counsel and solicitor — Salaried officer repre- senting the Crown.] — As the statutes of Canada defining the duties and salaries of the Attorney-General and his deputy deny additional compensation for services ren- dered by them in connection with litigation affecting the Crown, it is improper to allow counsel fees or solicitor's fees in respect of services rendered in such capacities by either of these oflfieers on the taxation of costs awarded in favour of the Crown. Jarvis v. the Great Western Railway Co. (8 U.. C. C. P. 280), and The Charlevoix Election Case (Cout. Dig. 388) followed. Hamburg- American Packet Go. v. The King, xxxix., 621. 15. Railicay aid — Provincial subsidy — Construction of statute — 80 Vict. c. 4, s. 12 (Que.) — 5Jt Vict. c. 88, s. Ij (Que.) — Breach of conditions — Compromise by Crown officers — Obligation binding on the Crown — Right of action — Extension of rail- way-, — Application of subsidy.] — The suppli- ants claimed that by the Quebec statutes, 54 Vict. c. 88 and 60 Vict. c. 4, a balance was due them on subsidy in aid of the Baie des Chaleurs Railway, that the subsidy was attributable to the first 60 miles from Meta- pedia towards GafepS Basin, that such sub- sidy was subject only to the conditions in the second part of s.-s. Ij. of the Act 54 Vict., and that the Provincial Government was bound by the terms of a transaction with the Lieutenant-Governor in Council, compromising for the land subsidy at a rate per acre in cash. The Supreme Court af- firmed the judgment appealed from (Q. R. 15 K. B. 120) dismissing the petition of right and holding that the subsidy applied to the 80 miles terminating at or near Gaspg Basin, and that the construction placed on the statutes by ofiicers of the Crown in effecting the compromise and part payment in money gave the suppliants no right of action against the Crown for the balance claimed by them. De Galindez et al. V. The King, xxxix., 682. 16. Contract — Delivery of goods — Condi- tions as to quality, weight, etc. — Inspection — Rejection — Conversion — Sale by Groicn officials — Deductions for short weight — Costs 355 CROWN. 356 — Sale.] — The Minister of Agriculture of Canada entered into a contract with the suppliants for the supply of a quantity of pressed hay for the use of the British army engaged in the operations during the late South African war, the quality of the hay and the size, weight and shape of the bales being specified. Shipments were to be made f.o.b. ears at various points in the Province of Quebec to the port of Saint John, N.B., and were to be subject to inspection and rejection at the ship's side there by govern- ment officials. iSome of the hay was re- fused by the inspector, as deficient in qual- ity, and some for short weight in the bales. In weighing, at Saint John, fractions of pounds were disregarded, both in respect to the hay refused and what was accepted ; there was also a shrinkage in weight and in number of bales as compared with the way- bills. The hay so refused was sold by the Crown officials without notice to the sup- pliants, for less than the prices payable un- der the contract, and the amount received upon such sales was paid by the govern- ment to the suppliants. In making pay- ment for hay accepted, deductions were made- for shortage in weights shewn on the way-bills and invoices, and credit was not given for the discarded fractions. — Held, the Chief Justice and Davies, J., dissenting, that the appellants were entitled to recover for so much of the amount claimed on the appeal as was' deducted for shrinkage or shortage in the weight of the hay delivered on account of the government weighers dis- regarding fractions of pounds in the weight of that accepted and discharged from the cars at Saint John; — Per Girouard, Iding- ton and Duff, JJ.^The manner in which the government officials disposed of the hay so refused amounted to an acceptance which would render the Crown responsible for pay- ment therefor at the contract price. — Judg- ment appealed from (12 Ex. C. R. 198) allowed in part with costs, the Chief Jus- tice and Davies, J., dissenting. Boulay v. The King, xliii., 61. 6. Public Lands. 17. Crown out of possession — Adverse pos- session — Gi'ant during — 2X Jac. I., c. lit (Imp.) -^ Information for inttusion.]- — Though there has been adverse possession of Crown lands for more than twenty years the Act 21 Jac. I., c. 14, does not prevent the Crown from granting the same without first re-establishing title by information of in- trusion. Judgment appealed from (36 N. B. Rep. 260) reversed, Davies, J., dissent- ing. (Affirmed on. appeal to Privy Council, 47 Can. Gaz. 424). Maddison v. Emmer- son, xxxiv., 533. 18. Mining lease — Trespass — Conversion — Title to lands — Evidence — Description in grant — Plan of survey — Certified copy.^ — The provisions of s. 20 of " The Evidence Act," R. S. N. 'S. (1900), c. 160, do not per- mit the reception of a certified copy of a copy of a plan of survey deposited in the Crown Lands Office to make proof of the ori- ginal annexed to the grant of lands from the Crown. Nova Scotia Steel Co. v. Bartlett XXXV., 527. ' 19. Subaqueous mining — Crown grants Dredging lease — Breach of contract — Suiae- guent issue of placer mining licenses — Dam- ages — Pleading and practice — Statement of claim — Demurrer — Cause of action.] — A statement of claim which alleges that the Crown, after granting a lease of areas for subaqueous mining and while that lease was in force, in derogation of the rights of the lessee to peaceable enjoyment thereof, inter- fered with the rights vested in him by trans- ferring the leased area to placer miners who were put in possession, of them by the Crown to his detriment, discloses a suffi- cient cause of action in support of a peti- tion of right for the recovery of damages claimed in consequence of such subsequent grants. — Judgment appealed from (10 Ex. C. R. 390) reversed, Davies and Idington, JJ., dissenting. — ^Davies, J., dissented on the ground that there was no sufficient alle- gation in the petition either of interference with the submerged beds or bars of the stream, which alone were included in the dredging lease, or of such active interfer- ence by the Crown as would justify an ac- tion. (Appeal to Privy Council dismissed with costs; 10th July, 1908). McLean v. The King, xxxyiii., 542. 20. Mines and minerals — Hydraulic regu- lations — Application for mining location — Duties imposed on Minister of the Interior — Status of applicant — Vested rights — Con- tract binding on the Crown.] — Under the hydraulic regulations for the disposal of min- ing locations in the Yukon Territory, en- acted by the Governor-General in Council on 3rd December, 1898, as amended by subse- quent regulations and by the order in coun- cil of 2nd February, 1904, the Minister of the Interior is charged with the duty not only of pronouncing on the question whe- ther or not the locations applied for should be reserved for disposal under such hydrau- lic regulations, but also of determining the priority of rival claimants, the extent of the locations and tlie conditions of any lease to be granted. — Until the minister has given a decision favourable to an applicant, there can be no implied contract binding upbn the Crown in respect to the location applied for, and the mere filing of an application for an hydraulic lease confers no status or prior rights on the applicant in respect to the ground therein described. Smith v. The King J Frooks v. The King, xl., 258. 21. Mining regulations — Hydraulic lease- Breach of conditions — Construction of deed — -Forfeiture — Right of lessees — Prooeiure on inquiry — Judicial duties of arbiter.] — Under a condition for defeasance in a lease of a mining location, made by the Crown in vir- tue of the hydraulic mining regulations of 3rd December, 1898, a provision that the Minister of the Interior is to be the "sole and final judge " of the fact of default by t the lessee does not entitle the Crown to can- cel the lease and re-enter until the fact of such default has been determined by tie Minister in the exercise of the functions vested in him after an inquiry of a judicial nature in which an opportunity has been 357 CROWN. 358 afforded to all parties interested of knowing and being heard in respect to the matters alleged against them in such investigation.^ Quwie, per Idington,J. — Was there not sulK- cient evidence in the case to shew that there had been no such breach of the conditions as could work a forfeiture of the lease? — (Leave to appeal to Privy Council was re- fused, 18th July, 1908). Bonanza Creek Hydraulic Concession v. The Kiiiy, xl., 281. 22. Mining regulations — Hydraulic lease — Breach of conditions — Construction of deed — forfeiture — Right of lessees — Procedure on inquiry — Judicial duties of ariiter.'] — Under circumstances similar to those in- volved on the appeal in the case of The Bonanza Creek Hydraulic Concession v. The King (40 Can. S. C. R. 281), this appeal was allowed with costs for the reason that there could be no right of cancellation of the lease or re-entry by the Crown until default by the lessees had been established upon an investigation of a judicial nature by the ilinister of the Interior in the exercise of the functions vested in him by the hydraulic regulations and the terms of the lease. — Per Idiugton, J. — The facts disclosed by the evi- dence could not justify the cancellation of the lease br re-entry for breach of the con- ditions thereof. — (Leave to appeal to Privy Council was refused, 18th July, 1908). Klondyke Governmient Concession v. The King, xl., 294. 23. Sale of Crown lands — Holders of loca- tion ticket — Privilege reserved — Prior right — "Proprietor of the soil" — Construction of statute— B. 8. Q. (1888) ss. 1269, lUO, lUl; 55 d 58 Vict. c. 20 (Que.]— The ex- pression " proprietor of the soil " in s. 1441 of the Revised Statutes of Quebec, 1888, as amended by 55 & 56 Vict. c. 20, read in connection with s. 1269, Rev. Stats. Que., 1888, is not intended to designate the holder of a location ticket, and consequently, per- sons holding Crown lands, merely as locatees, have no vested preferential rights to grants from the Crown of the mining rights there- in, under ss. 1440 and 1441 of the Revised Statutes of Quebec, 1888, as amended by the " Act to amend and consolidate the Mining Law," 55 & 56 Vict. c. 20 (Que.). Green v. Blackburn, xl., 647. 24. Title to lands — Homestead and pre- emption rights — Unpatented Dominion lands — " Transfer " — Incumbrance — Charge to se- cure debts — Sanction of minister — Absolute nullity — Construction of statute — 60 & 61 riot. c. 29, s. 5; R. S. C. (1906) c. 55, s. J//2.]— On 6th August, 1904, the holder of rights of homestead and pre-emption in Do- minion lauds, in Manitoba, which had not then been patented or recomniended for pa- tent, assumed to " incumber, charge and create a lien " upon the lands as security for the payment of a debt by an instrument executed without the sanction of the Minis- ter of the Interior. — Held, affirming the judgment appealed from (11 West. L. R. 185), that the instrument was in effect a " transfer " and was absolutely null and void under the provisions of the " Dominion Lands Act." Amerioan-Abell Engine and Thresher Co. v. McMillan, xlii., 377. -~). Location — Public policy — Evasion of statute — B. G. "Land Act," 8 Edw. VII. c. 30, ss. SJf, 36 — Sale of Crown lands — Princi- pal and agent — Commission on sales — Quan- tum meruit — Tainted contract.] — B., who had laid out and inspected Crown lands as a Government surveyor, furnished informa- tion to the defendant and an associate which enabled them to secure choice locations, comprising over 7,000 acres of these lands, in the names of a number of persons nomi- nated by them and employed as " stakers." Subsequently B. assisted in the disposal of the lands thus secured to innocent pur- chasers under an arrangement with the de- fendant and his associate that he was to participate in any profits which should be obtained on such sales. Ju an action by B. to recover compensation for the services he had rendered in regard to these sales : — Held, that the circumstances disclosed a scheme concocted in opposition to the policy of the British Columbia " Land Act " and in violation of its provisions respecting the disposal of Crown lands ; consequently, the agreement, being tainted with the character of the scheme, ought not to be enforced by the courts. — Per Idington and Anglin, JJ. — The plaintiff's claim fails for want of evi- dence of any request by the defendant that he should render the services in respect of which remuneration is claimed nor an agree- ment to remunerate him for assistance in effecting the sales in question.- — The judg- ment appealed from (3 West. W. R. 725; 23 West. L. R. 30; 9 D. L. R. 400), stood affirmed. Brownlee v. Mcintosh, xlviii., 588. 26. Colonization — Locaiion ticket — Trans- fer hy locatee — Sale — Issiie of letters patent — Title to land — Registry laws — Notice — Arts. lJ,8-r, ]Jf88, 2082, 208J,, 2085, 2098 G. C] — Per Idington, Anglin and Brodeur, JJ.— Prior to 1st July, 1909, the holder of a location ticket for colonization land in the Province of Quebec had an interest in the land capable of being sold. In case of sale the purchaser's title became absolute on issue of the letters patent. Such title was good, even if unregistered, against a pur- chaser from the original locatee after the issue of letters patent who had notice of the prior sale. — Per Duff, J. — Without the approval of the Crown Eands Department, a locatee of Crown lands was incapable of transferring any jus in re therein while the location was vested in him. Nevertheless he could make a contract for the sale of his rights in the located land, while he remained locatee thereof, which, under the provisions of article 1488 of the Civil Code, would have the effect of transferring the land upon the issue of letters patent thereof to him by the Crown. On the proper construction of arti- cle 2098 of the Civil Code, where the title of the transferror does not come within the classes of rights exempted from the form- ality of registration by article 2084 C.C. and has not been registered, a transfer of that title does not take effect until the prior title deed has been registered. — Judgment of the Court of King's Bench (Q. R. 23 K. B. 80), reversed, Davies, J., dissenting. — Per Da- vies, J., dissenting. — A transfer by the loca- tee of his rights is void if made to a person or a company who could not become a bond fide settler and, therefore, could not, himself 359 CEOWN. 3611 or itself, obtain a location ticket for coloni- zation land. Howard v. Stewart, 1., 311. 27. License to out timber — Indian lands — B. 8. G. [1886] c. 43, ss. SJf and 55 — License for twelve months — Regulations ■ — Renewal of Zicense.]— Section 54 of R. S. C. [1886] c. 43 (now R. S. C. [1906] c. 81), enacted that licenses might be issued to cut timber on Indian lands, and s. 55 that " no license shall be so granted for a longer period than twelve months from the date thereof." By a regulation made by the Governor-General in Council and sanctioned by Parliament it was provided that license holders who had complied with all existing regulations should be entitled to renewal on application. — Held, affirming the judgment of the Exchequer Court (14 Ex. C. R. 115), that a license holder who has complied with the regula- tions has no absolute right to a renewal as a regulation making perpetual renewal obliga- tory would be inconsistent with the statutory limitation of twelve months and, therefore, non-operative. Booth v. The King, li., 20. 28. " Expropriation Act," R. 8. C, 1906, c. UiS, ss. 8, 2S, SI — AhoMdonment of pro- ceedings — ■ Compensation — Allowance of in- terest — Construction of statute — Practice — Taxation of costs — Solicitor and client — Reimlnirsement of expenses — Interpretation of formal judgment — Reference to opinion of judge.] — While the owners still continued in possession of lands in respect of which expropriation proceedings had been com- menced under the "Expropriation Act," R. S. C, 1906, c. 143, and before the indemnity to be paid had been ascertained, the pro- ceedings were abandoned, no special damages having been sustained. — Held, that in asses- sing the amount to be paid as compensation to the owners, under the provisions of the fourth sub-section of section 23 of the " Ex- propriation Act," there could be no allow- ance of interest either upon the estimated value of the lands or upon the amount ten- dered therefor by the Government. — The trial judge, by his written opinion, held that the owners were entitled to be fully indem- nified for their costs as between solicitor and client and for all legitimate and reason- able charges and disbursements made in consequence of the proceedings which had been taken. The formal judgment provided merely that costs should be taxed as be- tween solicitor and client. — Per Davies, Idington, Anglin and Brodeur, JJ. — In the taxation of costs, the registrar should follow the directions given in the judge's opinion to interpret the formal judgment as framed. Duff, J., contra. — Per Duff, J. — The regis- trar, in taxing costs, is required by law to follow the terms of the formal judgment and it is not open to him' to correct it in order to make it accord with his interpretation of the opinion judgment. The court appealed from, however, may correct the formal judgment in so far as it does not express the intention of the opinion judgment. Quehec, Jaoques- Cartier Electric Co. v. The King, li. 594. 29. Dominion lands — Lease of mining areas — "Dominion Lands Act," s. Ifl — Sta- tutory regulations — • Conditions of lease — ■ Defeasance — Notice — Cancellation on de- fault — Forfeiture of rights — Principal and agent — Solicitor.] — A lease granted under the regulations regarding the leasing of school lands in the North-West Territories for coal mining purposes, made pursuant to s. 47 of the " Dominion Lands Act," pro- vided that, on default by the lessee to per- form conditions of the lease, the Minister of the Interior should have power to cancel the lease by written notice to the lessee, where- upon the lease should become void and the Crown might re-enter, re-possess and enjoy its former estate in the lands. — Held, revers- ing the judgment appealed from (15 Ex. C. R. 252), Idington and Brodeur, JJ.. dis- senting, that in order to determine such a lease it is essential that the cancellation should be effected by a notice in writing from the Minister which actually reaches the lessee. — Per Pitzpatrick, C.J. — The no- tice should declare the intention of the Min- ister to make the cancellation on account of breach of the conditions, and the lessee should be given an opportunity to remedy the breach in question or, at least, to be heard before forfeiture. No proposed can- cellation can be effective against the lessee unless such a notice has been given to him before the forfeiture is declared. — Per Duff, J. — In the absence of special authority, solicitors employed by the lessee in respect of his business with the Department cannot be deemed agents to whom such notice of cancellation could be given on his behalf. — Per Duff, J. — Section 6 of the regulations has not the effect, upon default in perform- ance of the nominated conditions, of termin- ating the lessee's interest ipso jure, but only on the election of the Crown manifested as provided for in the lease. Davenport v. The Queen (3 App. Cas. 115), applied. — Per Idington, J. (dissenting). — The lease in question was determinable at the election of the Crown upon the mere fact of breach of conditions, and the Crown having so elected, the Minister was not competent to revive it or to waive the consequences of default.— Per Idington and Brodeur, JJ. — ^By notifi- cation to his solicitors and "the effect of the correspondence with the Department, which took place thereafter, it must be taken that the lessee had actual notice of the intention of the Minister to cancel the lease for breach of conditions. Paulson v. The King, lii., 317. 30. Lands vesting in Crown — Gonstitii- tional law — " B. N. A. Act, 1867," ss. 91 (24), 109-in— Title to "Indian lands"- Surrender — Sale hy Commissioner — Pro- perty of Canada and provinces — Constrm- tion of statute — " Indian Act," 39 T. c. 18— R. S. C. 1886, c. 43, s. 42 — Words and phrases — " Reserve " — " Person " — " Lo- cated Indian "■ — Evidence — Puilic document — ■ Legal maxim.] — Per curiam. — The "In- dian Act," 39 V. c. 18, does not prohibit the sale by the Crown to an " Indian " of public lands which have, on surrender to the Crown, ceased to be part of an Indian "re- serve," nor prevent an individual of Indian blood, who is a member of a band or tribe of Indians, from acquiring title in such lands. The. use of the word "person" in - the provisions of the " Indian Act " (39 V. c. 18, s. 31 ; R. S. C. 1886, c. 43, s. 42), re- lating to sales of Indian lands, has not the effect of excluding Indians from the class ■Ml CEOWN. 3(i-i entitled to become purchasers o£ such lands on account of the definition of that word in the interpretation clauses of the statutes in question. — Per Idington, J. — Crown lands of the Province of Canada, situate in Lower Canada, which had not (as provided by the statute 14 and 15 V. c. 106), been surveyed and set apart, as intended to be vested in the Commissioner of Indian Lands for Lower Canada, and appropriated to the use of In- dians prior to the 1st July, 1867, do not fall within the definition of " Lands reserved for the Indians " in the 24th item enumerated in s. 91 of the " British North America Act, 1867," and, consequently, did not pass un- der the control of the Government of the Dominion of Canada at the time of Con- federation. In regard, therefore, to the lands in question the presumption is that they then became vested in the Crown in the right of the Province of Quebec, and, in the absence of evidence to the contrary, the Attorney-General for Canada cannot now enforce any claim of title to such lands in the right of the Dominion. — Per Duff and Anglin, JJ. — The order-in-council of 1869, authorizing the acceptance of a surrender, and the surrender pursuant thereto by the Indians of the " reserve " within which the lands in question are situate, are public documents the recitals in which are primd, facie evidence of the facts stated therein (.Siurla v. Freccia (5 App. Cas. 62S), at pp. 643-4, referred to). Evidence is there- by afforded that the band of Indians occu- pied the tract of land in question as a " re- serve " and the principle " omnia prwsu- muntur rite esse acta" is sufficient to justify, prima facie, the conclusion that the order- in-council of 1853, respecting the constitu- tion of the reserve, was carried out and that the occupation thereof by the Indians was legal. Consequently, the rights ac- quired by the Indians constituted ownership, the surrender by them to the Crown was validly made and the lands passed under the control of the Government of Canada, at the time of Confederation, in virtue of the pro- visions as to " Lands reserved for the In- dians " in s. 91 of the British North Am- erica Act, 1867." St. Catherine's Milling and Lumber Go. v. The Queen (14 App. Cas. 46), distinguished. — Judgment appealed from (Q. E. 24 K. B. 433), affirmed. At- torney-General for Canada v. Oiroux, liii., 172. 31. '-I'itle to land — Adverse possession against Crown — " Nullum Tempus Act " — Interruption of possession — Information of intrusion — Judgment by default — Acknoip- ledgment of title — " Real Property Limita- tions Act" (Om*.).] — A judgment by de- fault, on information of intrusion against persons in possession of Crown lands,, which was never enforced, did not interrupt such possession and prevent it ripening into title under the "Nullum Tempus Act." — "The Real Property Limitations Act" of Ontario (C. S. U. C. c. 88, s. 15; R. S. O. [1914] c. 75, s. 14), providing that an ac- knowledgment of title in writing shall inter- rupt the adverse possession does not apply to possession of Crown lands and such ac- knowledgment is not an interruption under the "Nullum Tempus Act." — The provision m the "Ontario Limitation of Actions Act" of 1902, making an acknowledgment apply to interrupt possession of Crown lands is not retroactive or, if it is, it cannot apply to a ease in which the adverse possession had ripened into title before it was passed. Prr Duff, J. — As intrusion does not, in it- self, deprive the Crown of possession, the occupation required to attract the benefit of the first section of the " Nullum Tempus Act," 9 Geo. III., c. 16, is not technically possession ; but lands are " held or enjoyed " within the meaning of that section where facts are proved wbich, in litigation between subject and subject, would constitute civil possession as against the subject owner. — The judgment of the Exchequer Court (16 Ex. O. R. 67), in favour of the Crown on information of intrusion was reversed, Fitz- patriek, C.J., holding that the Crown had failed to prove title, Idington, J., that the claim was barred by the negative clause of the first section of the " Nullum Tempus Act," and the other judges that the defend- ants had obtained title by operation of the " Nullum Tempus A,ct." Hamilton v. The King, liv., 331. .j2. Rideau canal lands — Forfeiture — Mis- user — Condition subsequent — Jurisdiction of Exchequer Court of Canada — Costs. Wright v. The Queen, Cout. Cas. 151. 33. Title to land — Railway aid- — Land grant — Crown patents — Dominion Lands Regulations — Reservation of minerals — Con- struction of statute — 53 V. c. Jf — R. S. C. (1S86), 0. 51f — Free grants — Parliamentary contract, Cout. Cas. 271. See Title to Land. 34. Settlement of Manitoha claims — Con- struction of statute — Title to lands — Opera- tion of statutory grant — Transfer in prw- senti — Condition precedent — Ascertainment and identification of swamp lands — Re- venues and emblements — Constitutional laio. xxxiv., 287. See Manitoba Swamp Lands. 35. Titlfi to lands — Grant from Grown — Implied reservations — Description — Navi- gable waters — Floatable streams — Inlet of navigable river — Public law — Construction of deed — Possession — Estoppel — Evidence — Waiver, xxxiv., 603. See RivEEs and Streams. 36. Mining lease — Prospector's license — • Testing machinery — Annexation to the free- hold — Trade fixtures — Fi. fa. de bonis — Sale under execution, xxxv., 539. See Execution. 37. Assessment and taxes — Constitutional law — Exemptions from taxation — Land sub- sidies of the Canadian Pacific Railway — Ex- tension of the boundaries of Manitoba — Con- struction of statutes respecting the constitu- tion of Canada, Manitoba and the North- west Territories — Construction of contract — Grant in prcesenti — Cause of action- — Jur- isdiction — Waiver, xxxv., 550. See Assessment and Taxes. 38. Title to land — Ambiguous description of grantee — " Greek Catholic Church" — Evi- 363 CEOWN. 364 dence — Construction of deed — Reversal of concurrent findings, xxxvii., 177. See Title to Land. 39. Equitable mortgage— Mines and min- ing — Lease of mining lands — Sheriff's sale — Purchase hy judgment creditor of mortgagee — Registry laws — Priority — Actual notice — Lien for Crown dues paid as rent — G. S. if. Ji. (1903) c. 30, s. 139, xxxvii., 517. See Mines and Mining. 40. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — Subse- quent issue of placer mining licenses — Dam- ages — Pleading and practice — Statement of claim — Demurrer — 'Cause of action, xxxviii., 542. See Ceown Grant. 41. Specific performance — Tender for land ■ — Agreement for tender — One party to ac- quire and divide with other — Division by plan — Reservation of portion of land from Crown grant, xxxix., 220. See Specific Peefobmance. 42. Croivn lands — Extinguishment of title to Indian lands — Payment by Dominion — Liability of province. Ontario V. Dominion of Canada, xlii., 1. See Constitutional Law. 43. Arbitration and award — Statutory ar- bitrators — Jurisdiction — Awards "from time to time" — Res judicata. Quebec v. Ontario, xlii., 161. See Aebiteation and Awaed. 44. Title to lands — ■ Homestead and pre- emption rights — Unpatented Dominion lands ' ■ — " Transfer " — Incumbrance— rCharge to secure debts — Sanction of minister — Abso- lute nullity — Construction of statute — Do- minion Lands Act. American- Abell Co. v. McMillan, xlii., 377. See Title to Land. 45. Water lots — Expropriation — Statutory authority to grant lands. Cunard v. The King, xliii., 88. See Expeopeiation. 46. Timber license — Groivn lands in British Columbia — Real estate — Personalti/ — Contract — Sale — -Exchange — Considera- tion — Payment in joint stock shares — Ven- dor's lien — Evidence — Onus of proof — Plead- ing and practice, xliv., 458. See Lien. 47. Assessment and taxes — Lease of Crown lands — Interest of occupier — Consti- tutional lane — Exemption from taxation — Construction of statute — " B. N. A. Art, 1807," s. 125—(Sask.) 6 Edw. VII., o. 36, "Local Improvements Act" — (Sask.) 7 Edw. VII., c. 9, " Supplementary Revenue Act " — Recovery of taxes — Non-resident — Action for debt — Jurisdiction of provincial courts, xlix., 563. See Constitutional L.\w. 48. Action — Timber on pre-empted lands — Rights of prc-pmii1(ir — B. C. " Land Act." R. 8. B. C. 1911, c. 129, ss. 77 et seq. and 132 — Negligence — Fire set by railway loco- motive — Assessment of damages, xlix., 33. See Damages. 49. Trespass — Cutting timber — Gon- Hicting claims — Priority of title — Evidence. Ilirtle V. Boehner, 1., 264. See Trespass. 50. License to cut timber — Indian lands — R. S. C. 1906, c. 43, ss. JfS, 54, 55— License for twelve months — Regulations — Renewal of license. Booth v. The King, li., 20. See Indian Lands. 51. Information of intrusion — Adverse possession — ■ Interruption — Nullum Tempus Act — Acknowledgment of title. Hamilton v. The King, liv., 331. See Limitation of Actions. 7. Public Work. 52. Public work — Incorporation of com- pany — Construction of canal — 0-overnor-in- Council — Approval of plans — Discretion — Refusal to approve — Right of action.] — The statute 61 V. c. 107 (D.), incorporated a company for the purpose of constructing and operating a canal between the St. Lawrence and Kichelieu Rivers. Sec. 22 provided that before the work of constructing the canal was begun, the plans, etc., were to be ap- proved by the Governor-in-Council. — Held, aiiirming the judgment appealed from (16 Ex. C. R. 125), Fitzpatrick, C.J., and Bro- deur, J., dissenting, that the refusal of the Governor-injOouneil to approve plans sub- mitted did not give the company a claim for damages which could be enforced against the Crown. — Per Duff, J., that the refusal to consider the plans did not give birth to a claim for which a petition of right lies.— Held, per Fitzpatrick, C.J., and Anglin and Brodeur, JJ., that the Governor-in-Council had no discretionary power to refuse appro- val of the plans on the ground that the undertaking authorized by Parliament was opposed to public policy. Lake Ghamplain d St. Lawrence Ship Canal Co. v. Tlie King, liv., 461. 53. Public ivork — Work dehors contract-i- Acceptance by Crown — Payment — fair rahic. xliv.. 208. See Public Work. 8. Railway. 54. Petition of right — Contract— Powen of Commissioners of the Transcontinental Railway — Liability of Crown — Construction of statute— 9 Edw. VII. c. 7i.]— "The Na- tional Transcontinental Railway Act, o Edw. VII. c. 71 (D.), does not confer powers upon the Commissioners of the Transcontinental Railway in respect to the inspection and valuation of lands required for the purposes of the " Eastern Diyisibn of tho railway ; consequently, a petition ot 365 CEOWN. 366 right will not lie for the recovery of re- muneration for services of that nature.— Judgment appealed from (13 Ex. C. R. 155) affirmed, Idington, J., dissenting. Johnston V. The King, xliv., 448. 55. Arbitration and award — Procedure — Prolonging date for award — Special circum- stances — ''Railway Act," R. 8. C. 1906, c. 3~, s. 204-^ — ^On au arbitration respecting compensation to be paid for lands taken un- der the " Railway Act," R. S. C. 1906, c. 37, the arbitrators had fixed a day for their award according to the provisions of s. 204. After some proceedings before them it was arranged, for the convenience of counsel for the parties, that further proceedings should be suspended until the return of counsel who were obliged to be present at the sittings of the Judicial Committee of the Privy Council and nothing further was done until after the return of counsel from abroad at a date later than the time so fixed for the award. The arbitrators had not prolonged the time for making the award but, upon reassembling after the day originally fixed had passed, they fixed a later date for that purpose. The company's arbitrator and counsel then refused to take part in any subsequent pro- ceedings and the two remaining arbitrators continued the hearing and made an award in favour of the claimant greater than that offered by the company for the lands expro- priated. In an action by the company to have the award set aside and for a declara- tion that the sum offered should be the compensation payable for the lauds. — Held, Fitzpatrick, C.J., and Anglin, J., dissenting, that, in the circumstances of the case, the company should not be permitted to object to the manner in which the arbitrators had proceeded in prolonging the time and mak: ing the award. The appeal from the judg- ment of the Court of King's Bench (Q. R. 22 K. B. 221), declaring the award to have heen validly made was, consequently, dis- missed with costs. Canadian Krirthpin Que- bec Railway Co. v. Naud, xlviii., 242. 56. Railway aid — Grown grant — Patent for lands — Dominion land regulations — Free grants — Reservation of minerals, Cout. Cas. 271. See Title to Lands. 57. Joint operation of railway — Master and servant — Negligence — Responsibility for act of joint employee — Traffic agreement — 62 & 63 V. c. 5 (D.), xxxvi., 6.55. See Railways. 58. Lease — Canal — Water-power — Im- provements on canal — Temporary stoppage of power — Compensation — Total stoppage — Measure of damages — Loss of profits, xxxvii., 259. See Lease. 59. Construction of statute — "Alberta Local Improvement Act " — Assessment and taxation — Constitutional lair — Railway aid — Land subsidy — Crown lands — Interests of private owner, xlv., 170. See Statute. 60. Raihvay subsidies — Aid to construc- tion — Purchase of constructed line — Con- niruction of statute — Supplementary agree- ment — Rights of transferee — Obligation binding on the Crown. Quebec, Montreal <& Southern v. The King, liii., 275. See Railways. 61. Railway subsidies — Aid to construc- tion — Purchase of constructed line — ■ Con- strneiion of statute — Supplementary agree- ment — Rights of transferee — Obligation binding on the, liii.. 275. See Railway. 9. AVaiver. 62. Breach of trust — Purchase of deben- tures out of Common School Fund— Know- ledge of misapplication of moneys — Pay- ment of interest — Statutory prohibition — Evasion of statute — Estoppel against the Grown — Action — Adding parties — Prac- tice.~\ — In an action by the Crown against the Quebec North Shore Turnpike Road Trustees to recover interest upon debentures purchased from them by the Government of the late Province of Canada (with trust funds held by them belonging to the Com- mon School Fund), the defendants pleaded that the Crown was estopped from recovery inasmuch as, at the time of their purchase, the advisers of the Crown were aware that these debentures were being issued in breach of a trust and with the intention of misap- plying the proceeds towards payment of in- terest upon other debentures due by them in violation of a statutory prohibition : — Held, affirming the judgment appealed from (8 Ex. C. R. 390) that, as there was statu- tory authority for the issue of the deben- tures in question, knowledge of any such breach of trust or misapplication by the advisers of the Crown could not be set up as a defence to the action. Quebec North Shore Turnpike Road Trustees v. The King, xxxviii., 62. I) 63. Banks and banking — Forged cheques — ■ Payment — Representation by draicee — Implied guarantee — Estoppel — Acknowledg- ment of bank statements — Liability of in- dorsers — Mistake — Action — Money had and received.'^ — A clerk in a department of the Government of Canada, whose duty was to examine and check its account with the Bank of Montreal, forged departmental cheques and deposited them to his credit in other banks. The forgeries were not dis- covered until some months after these cheques had been paid by the drawee to the several other banks, on presentation, and charged against the Receiver-General on the account of the Department with the bank. None of the cheques were marked with the drawee's acceptance before payment. In the meantime, the accountant of the depart- ment, being deceived by false returns of checking by the clerk, acknowledged the cor- rectness of the statements of the account as furnished by the bank where it was kept. In an action by the Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-General : — Held, affirming the judgment appealed from (11 Ont. L. R. .595), that the bank was 367 CEOWN ATTOENEY. 368 liabde unless the Crown was estopped from setting up the forgery. — Per Davies, Iding- ton and Duff, JJ., that estoppel could not be invoked against the Crown. — Per Girouard and Maclennan, JJ., that, apart from the question of the Crown being subject to estop- pel, under the circumstances of this ease a private person would not have been estopped had his name been forged as drawer of the cheques. — Per Davies and Idington, JJ. • — The acknowledgment by the accountant of the department of the correctness of the statements furnished by the bank, being made under a mistake as to the facts, the accounts could be re-opened to have the mistake rectified. Banh of Montreal v. The King, xxxviii., 258. And see Banks and Banking. 10. Watees. 64. Rivers and streams — Grown domain — Title to land — " Plottage " — ■ Driving loose logs — Public servitude — Riparian oicnership — Action possessoire — Arts. J,00, 503, 507, 2192 G. G. —Art. 1064 G. P. Q.] — In the Province of Quebec, water- courses which are capable merely of floating loose logs (flottables & buohes perdues) are not dependencies of the Crown domain with- in the meaning of article 400 of the Civil Code. The owners of the adjoining riparian lands are, consequently, the proprietors of the banks and beds of such streams and have the right of action au possessoire in respect thereof. — There is, however, a right of servitude over such watercourses in respect to all advantages which the streams and their banks, in their natural condition, can afford to the public, there being no dis- tinction in this regard between navigable or floatable streams and those which are neither navigable nor floatable. MaeBean v. Garlisle (19 L. C. Jur. 276) and Tanguay V. Price (37 Can. S. C. R. 6.57) followed.— Judgment appealed from (Q. R. 16 K. B. 48) afiirmed. Girouard and Idington. JJ., dissenting. Tanguay v. Canadian Electric Light Go., xl., 1. 65. Expropriation of land — Water lots — Expectation of enhanced value — Crown grant — 'Utatutory authority.] — Land in Halifax. N.S., including a lot extending into the har- bour, was expropriated for the purposes of the Intercolonial Railway. The title to the water lot was originally by grant from the Government of Nova Scotia, but no statu- tory authority for making such grant was produced. The lot could have been made much more valuable by the erection of wharves and piers for which, however, as they would constitute an obstruction to navigation, a license from the Dominion Government would have to be obtained. $10,000 was tendered as the value of all the land expropriated and the owners, claiming much more, appealed from the judgment of the Exchequer Court allowing that amount. — Held, Duff, J., dissenting, that the owners were not entitled to compensation based on the enhanced value that could be given to the water lot by the erection of wharves and piers and the expectation that a license would be granted therefor, and if they were the amount tendered was, in the circum- stances, sufficient. — Qucere. — Can a Crown grant of lands be made without statutory authority. — Held, per Duff, J., that there was such authority in this case. — ^Judgment of the Exchequer Court (12 Ex. C. R. 414) affirmed. Cunard v. The King, xliii.,'88. 66. Rivers and streams — Navigable waters — Floatability — Ownership of beds — Qrant of Grown lands — Conveyance of bed of navi- gable waters — Title to land — Art. 400 C. C 1 — In the Province of Quebec, a river which, owing to natural obstructions, is capable only of floating loose timber (flottables i buches perdues), in portions of its course may, at least from its mouth upwards until some such obstruction is reached, be navi- gable and subject to the rule of law applic-. able to navigable waters. As the river in question for several miles from' its moutli upwards to a point where its course is ob- structed by rapids is in fact capable of be- ing utilized for the purposes of navigation the bed of the stream for that distance forms part of the Crown domain. (Art. 400 C. C.) — Without express terms to that effect a Crown grant, made in 1806, of town- ship lands in the territory now comprised in the Province of Quebec did not pass title to the grantee in the bed of navigable waters within the area described in the letters patent of grant. — Idington, J., dissented on the ground that the language of the letters patent in question was intended and was sufficiently explicit and comprehensive to convey to the grantee the bed of the navi- gable waters included within the limits of the description of the lands granted. — ^The judgment appealed from (15 Ex. C. R. 189), was affirmed, Idington, J., dissenting. Leamy v. The King, liv., 143. 67. Rivers and streams — Navigable and floatable waters — Obstructions to navigation — Letters patent of grant — Evidence — Golla- terail circumstances leading to grant — Limi- tation of terms of grant — Title to land — Ri- parian rights — Fisheries — Arts. 400, 4Vi, 503 G. C, xxxvii., 577. See Rivers and Streams. 68. Title to land — Rivers and streams — Navigable or floatable waters — Grou-n grant — Riparian rights — Title to bed of river- Erection of townships — Description of area included — Costs. Maclaren v. Attorney-Gen- eral for Quebec, xlvi., 656. 69. Canadian waters — Sea coasts — Pro- perty in foreshores — Harbours — Havens- Roadsteads — Oicnership in beds — Gonstruc- tion of statute — "B.N.A. Act," 1867, ss. 108, 109. Attorney-Gen. v. Ritchie, lii., 78. See Constitutional Law. OROW^N ATTORNEY. Municipal corporation ■ — Statutory dutt — County officers — Office accommodation- Discretion — Mandamus.} — ^The courts sbouM not interfere by mandamus with the reason- able exercise by a County Council of its dis- cretion in selecting the place in the county 369 CUSTOM OF TEADE. 3?0 at which an office shall be provided for the County Crown Attorney and Clerk o£ the Peace. — Judgment of the Court of Appeal (19 Ont. L. R. 659) affirmed. Bodd v. County of Essex, xliv., 137. Croini — Refusal to submit petition of right — Tort — Right of action — Damages — Pleading — Practice — Withdrawal of case from jury — New trial — Costs, xxxix., 202. See Action. CKOWN CASES. See Criminal Law. CROWN CASES RESERVED. 1. Criminal law — Practice — Reserved questions — Dissent from affirmance of con- riction — Appeal — Jurisdiction — Criminal Code, 1S92, ss. 7Ji2, t'/S, 7J,Ji, 750— R. S. C. (1906) c. U6, ss. 1013, 1015, 1016, 1024— Admission of evidence — Res gestce, xxxviii., 284. See Criminal Law. 1!. Appeal — Criminal laiv — Reserved — case — Application for '' during trial " — Criminal Code, s. lOH (3) — Construction of statute, xl., 272. See Criminax Law. CROWN, MINISTER OF. Constitutional law — Construction of stat- ute — ■ " Crown Procedure Act " — R. S. B. C. c. 57 — Duty of responsible minister of the Crown — Refusal to submit petition of right — -Tort ■ — Right of action — Damages, xxxix., 202. See Action. And see Costs. CROW^N OFFICER. 1. Mines and mining — Hydraulic regula- tions — Application for mining location — Duties imposed on Minister of the Interior — Status of applicant — Vested rights — Con- tract binding on the Crown, xl., 258., See Mines and Mining. 2. Mining regulartions ■ — Hydraulic lease — Breach of conditions — Construction of deed — Forfeiture — Right of lessees — Proce- dure on inquiry — Judicial duties of arbiter, xl., 281, 294. See Mines and Mining. 3. Breach of trust — Interest on bonds — Unlawful acts by Crown officers — Ultra vires — Withholding interest from Crown — Necessity of impleading other interested parties— Practice, Cout. Cas. 316. See Practice. CROWN PROCEDURE. Constitutiona>l law — Construction of stat- «*e — " Crown Procedure Act," R. S. B. G. 0. 57 — Duty of responsible minister of the CURATOR. Payment by insolvent — Preference — Recovery back by curator — Oaming transac- tion — Illegal contract — Right of action — Arts. 1031, 1032, 1036, 1927 C. C. — Arts. S53 et seq., C. P. Q., xlix., 91. See Insolvency. CUSTOMS. 1. Customs Act ■ — Importation of cattle — ■ Smuggling — Clandestinely introducing cat- tle into Canada — Claim for return of deposit made to secure release of cattle seized — Evi- deiice.] — The suppliants claimed the return of money deposited by them to obtain the re- lease of cattle seized for the infraction of the " Customs Act," and held by the Crown as forfeiture. Upon conclusions as to facts drawn from the evidence the petition of right was refused by the Exchequer Court (10 Ex. C. R. 79). On appeal the judgment of the Exchequer Court was affirmed. Spencer Brothers v. The King, xxxix., 12. 2. Customs duty — Canadian Tariff, 1907, items 503-506 — Importation of lumber — " Sawn planks " — " Dressed on one side only " — ■ " Not further manufactured " — Sizing by saw — Free entry. "i — Under item 504 of the " Customs TariSe, 1907," the im- portation into Canada is permitted free of duty of lumber described as " planks, boards and other lumber of wood, sawn, split or cut, and dressed on one side only, but not further manufactured." — Held, reversing the judg- ment appealed from (14 Ex. C. R. 53), Duff and Anglin, JJ., dissenting, that sawn boards or planks which have been " dressed on one side only " by a machine which not only dresses them on one side but, at the time of such operation, reduces them to uniform widths, by means of another sawing process which has the effect of " sizing " the lumber, have not thereby been subjected to such " further manufacture " as would bring them within the exception from free entry under item 504. Foss Lumber Co. v. The King, xlvii., 130. CUSTOM OF TRADE. 1. Construction of contract — Arts. S, 1016 C. C.—Sale of goods— Delivery.}— The construction of a contract for the sale of goods cannot be affected by the introduction of evidence of local mercantile usage unless the terms of the contract are doubtful and ambiguous. Dufresne v. i^ee, xxxv., 274. 2. Shipping — Time for loading limited by charter party — Loading at port — Custom — Obligation of charterer, xxxiv., 578. See Ships and Shipping. 371 DAMAGES. 372 3. Fire insurance — Contract of re-insur- ance — Trade custom — Conditions of con- tract — ■ " Rider " to policy — Limitations of actions — Commencement of prescription — Art. 2236 G. C, xxxv., 208. iVee Insurance, Piee. CY-PRES. Will — Devise — Discretion of execKtors — Withholding income — Reasonable time — Failure of object of devise — Costs, xxxv., 182. See Will. DAMAGES. 1. Assessment and Measure of Damages, Right or Action, 1-23. 2. Breach of Covenant, 24-2.j. 3. Expropriation, 26. 4. Libel, 27. 5. Negligence, 28-40. 6. Nuisance, 41-43. 7. Waiver, 44-45. 8 Warranty, 46. 9. Other Cases, 47-48. 1. Assessment, Etc. 1. Assessment of damages — Concurrent findings — Practice on appeal.'] — Where the judge at the trial had heard and seen the witness and had, on proper principles, as- sessed damages according to his apprecia- tion of the evidence, his decision being adopted by the court in banco, the court refused to interfere on appeal. Wood v. Leblanc, Gout. Gas. 409. '2. Breach of contract — Exemplary dam- ages — Evidence — Discretionary order by judge at trial — Interference by court of ap- peal.] — The trial court condemned the de- fendant to pay $122.50 damages for breach of contract for the sale of goods but, in view of unnecessary expenses caused in conse- quence of exaggerated demands by the plain- tiffs, which were rejected, they were ordered to bear half the costs. On an appeal by the defendant, the Court of King's Bench varied the trial court judgment by adding $100 exemplary damages to the condemnation and giving full costs against the defendant: — Held, reversing the judgment appealed from, that in the absence of any evidence of bad faith or wilful default on the part of the defendant, there was no justification for the addition of exemplary damages nor for inter- ference with the judgment of the trial court. Coghlin v. Fondciie de Joliette, xxxiv., 153. 3. River iiii.pi-oreiiients — Continuing dam- ages — Contract — I'lotective worlcs — Dis- cretion of court — Practice — Varying min- utes of judgment — Costs.] — Owing to the c-ondition of the locality and the character of certain improvements made for the pur- pose of increasing the water power at Gham- bly Kapids in the Richelieu River, the parties entered into an agreement respecting the construction of dams and otl^r works at the locus in quo, and it was provided that the company should assume the responsibil- ity and pay for all damages caused by " flooding of land, bridges or roads, if any, as well as all other damages caused " to the plaintiff " during or by reason of " the con- struction : — Held, reversing the judgment appealed from, that, under the agreement, the plaintiff could recover only such dam- ages as he might suffer from time to time in consequence of the floods at certain seasons being aggravated by the constructions in the stream and that, in the special circum- stances of the case, the courts below erred in decreasing the construction of protective works, inasmuch as tie company was en- titled to take the risks on payment of in- demnity as provided by the contract. Gham- bly Mfg. Co. V. Willett, xxxiv., 502. And see Practice. 4. Railways — Negligence — Free pass — Gonsideraiion for transportation — Misdirec- tion — Findings of jury — New trial — Exces- sive damages — Art. 503 C. P. Q.] — ^Where there was misdirection as to the assessment of damages merely and it appeared to the court that the damages assessed by the jury were grossly excessive, the Supreme Court of Canada made a special order, applying the principle of article 508 of the Code of Civil Procedure, directing that the appeal should be allowed and a new trialhad to assess damages, unless the plaintiff con- sented that the damages should be reduced to an amount mentioned. Central Vermont Rvay. Co. v. Franchire, xxxv., 68. 5. Overholding tenant — Negligence — Trespasser — Licensee — Master and ser- vant] — A trespasser or bare licensee in- jured through negligence may maintain an action. — The workmen of a contractor for tearing down portions of a building in order to make alterations turned on a water tap in a room where they were working and neglected to turn it off whereby goods in the story below were damaged by water: — Eeli, Davies and Nesbitt, JJ., dissenting, that the act of the workmen was done in course of their employment; that it was negligence; and that the owner of the goods could re- covQj-^ damages though he was in possession merely as an overholding tenant who had not beSn ejected. Sievert v. Broohfield, xxxv., 494. . ; 6. New tj-ial — Contradictory evidence^ Wilful trespass — Rule in assessing damages — Practice-^ Adding party — Revmsal on ap- peal.] — In all action for damages for entry upon a placer mining claim and removins valuable gold bearing gravel and dirt, the trial judge found the defendants guilty of frross carelessness in their work, held that they should be accounted wilful trespassers, and referred the cause to the clerk of the court to assess the damages. The referee adopted the severer rule applicable in c«s of fraud in assessing the damages. Tlie Territorial Court en banc reversed the trial judge in lii.s findings of fact upon the evi- 373 DAMAGES. 374 dence: — Held, reversing the judgment ap- pealed from, that the trial judge's findings should be sustained with a slight variation, but that the referee had erred in adopting the severer rule against the defendants in assessing the damages, and that his report should be amended in view of such error. — Semlle, that the record and pleadings should be amended by adding the plaintiff's partner as co-plaintiff. — Held, per Taschereau, O.J., dissenting, that although not, convinced that there was error in the judgment of the trial judge which the court en hanc reversed,^ while at the same time it did not appear that there was error in the judgment in tanco, yet the latter judgment should stand, as the court in banco should not be reversed unless the Supreme Court, on the appeal, be clearly satisfied that it was wrong. (Leave to appeal to Privy Council refused, 4th Aug., 1905.) Kirkpairick v. McNanice, xxxvi., 152. 7. New trial — Decree of appellate court — Reasons for judgment.] — 'B., a passenger on a railway train was thrice assaulted by a fellow-passenger during the passage. The conductor was informed of the first assault immediately after it occurred and also of the second, but took no steps to protect B. In an action against the railway company li. recovered damages assessed generally for the injuries complained of. The verdict was maintained by the Court of Appeal, but the Supreme Court of Canada ordered a new trial unless B. would consent to his damages being reduced (34 Can. S. C. R. 74). In the reasons given for the last-mentioned judgment, written by Mr. Justice Sedgewick for the court, it was held that damages could be recovered for the third assault only, but the judgment, as entered by the regis- trar, stated that the court ordered the re- versal of the judgment appealed from and a new trial unless the plaintiff accepted the reduced amount of damages. Such amount having been refused, a new trial was had, on which B. again obtained a verdict, the damans being apportioned between the sec- ond and third assaults. On appeal to tlie Supreme Court of Canada from the judg- ment of the Court of Appeal maintaining this verdict : — Held, Taschereau, C.J., and Davies, J., dissenting, that as the decree was in accordance with the judgment pronounced by the court when its decision was given, and as it left the whole case open on the second trial, the jury were free to give dam- ages for the second assault and their ver- dict should not be disturbed. — Held, per Taschereau, C.J., that the decree of the court should have been framed with refer- ence to the opinion giving the reasons for the judgment, and, if necessary, could be nmpnded so as to be read as the court in- tended. Canadian Pacific Railway Co. v. Blain, xxxvi., 159. 8. Mines and mining — Vendor and pur- chaser- — Sale of mining locations — Consider- ation in lump sum — Separate valuations — Misrepresentation—Deceit and fraud — Meas- ure of damages.] — .Upon representations made by the vendor the plaintiffs purchased several mining locations, the consideration therefor being stated in a lump sum. In an action of fraud and deceit brought by the purchaser against the vendor the trial judge, in discussing the total consideration for the properties purchased, found that there w: evidence to shew the values placed by the parties upon each of two of these properties as to which false and fraudulent representa- tions had been made, and which had turned out worthless or nearly so : — Held, reversing the judgment appealed from, the Chief Jus- tice and Idington, J., dissenting, that the finding of the trial judge as to the consider- ation ought not to be disturbed upon appeal and that the proper measure of damages, in such a case, was the actual loss sustained by the purchaser by acting upon the misre- presentations of the vendor in respect of the two mining locations in question irrespec- tively of the results or values yielded by the other locations purchased at the same time and as to which no false representations had been made. Peek v. Berry (37 Ch. D. 541) followed. (Appeal to Privy Council al- lowed, 9th May. 1907.) Syndicat Lyonnais du Klondyke v. Barrett, xxxvi., 279. 9. Lease — Canal — Water-power — Improve- ments on canal — Temporary stoppage of power — Compensation — T'Otal stoppage — Measure of damages — Loss of profits.] — A mill was operated by water-power taken from the surplus water of the Galops Canal under a lease from the Crown. The lease provided that in case of a temporary stoppage in the supply caused by repairs or alterations in the canal system the lessee would not be entitled to compensation unless the same continued for six months, and then only to an abate- ment of rent : — Held, Idington, J., duiitante, that a stoppage of the supply for two whole seasons necessarily and Tiond fide caused by alterations in the system was a temporary stoppage under this provision. — The lease also provided that, in case the flow of sur- plus water should at any time be required for the use of the canal or any public pur- pose whatever, the Crown could, on giving notice to the lessee, cancel the lease, in which case the lessee should be entitled to be paid the value of all the buildings and fixtures thereon belonging to him with ten per cent, added thereto. The Crown unwatered the canal in order to execute works for its enlargement and improvement, contemplat- ing at the time only a temporary stoppage of the supply of water to the lessee, but later changes were made in the proposed work which caused a total stoppage and the lessee, by petition of right, claimed dam- ages. — Held, Girouard, J., dissenting, that as the Crown had not given notice of its in- tention to cancel the lease, the lessee was not entitled to the damages provided for in case of cancellation. — Held, also, that the lessee was not entitled to damages for loss of profits during the time his mill was idle owing to the water being out of the canal. — Judgment of the Exchequer Court (9 Ex. C. R. 287) aflirmed, Girouard and Idington, .TJ.. dissenting. Beach v. The King, xxxvii., 259. 10. Watercourses — Riparian riglits — Ex- propriation — Trespass — Torts — Diver- sion of natural flow — Injurious affection — Damages.] — A riparian proprietor whose property has been injuriously affected by the unlawful diversion of the natural flow of a 375 DAMAGES. 376 watercourse may recover damages therefor and may also obtain relief by injunction re- straining the continuation of the tortious acts so committed. (Leave to appeal re- fused by Privy Council, 17th July, 1906). Leahy v. Town of North Sydney, xxxvii., 464. And see Rivers and Streams. 11. Expropriation of land — Payment — Market value — Potential valuej — D. pur- chased at different times and in sixteen dif- ferent parcels 623 acres of land, paying for the whole nearly $7,000, or about $11 per acre. The Crown on expropriating the land offered him' $20 per acre, which he refused, claiming $22,000, which on a reference to ascertain the value was increased to $45,- 000. The referee allowed $38,000, which the Exchequer Court reduced to the sum first claimed : — Held, reversing the judg- ment of the Exchequer Court (10 Ex. C. R. 208), Girouard, J., dissenting, that there was no user of the land nor any special cir- cumstances to make it worth more than the market value, which was established by the price for which it was sold shortly before expropriation. — ^D. claimed the large price as potential value of the land for ordiard purposes to which he had intended to de- vote it. — Held, that as he had not proved ' the land to be fit for such purpose and the evidence tended to disprove it, he could not receive compensation on that ground. Dodge v. The King, xxxviii., 149. And see Evidence. 12. Breach of contract — Conspiracy — Fraud — Assessment of damages.] — In an ac-tion for the price of pills manufactured according to a special formula supplied by defendants, under a contract with a condi- tion jthat the formula should not be used for or sold to persons other than defendants, the defendants denied liability and counter- claimed for damages for breach of this con- dition and conspiracy by the plaintiffs with persons who had infringed their trade- mark, and injured their business. The ac- tion was maintained in part, without costs, and the incidental demand sustained in re- spect to damages for loss of profits through sales of the pills to others and expenses of obtaining evidence as to the breach of con- tract, with costs, but the counterclaim was disallowed in respect to other expenses in the prosecution of the conspirators ; it was also found that the plaintiffs had not par- ticipated in the conspiracy. On an appeal from the judgment of the Court of King's Bench, afiirming this decision, the majority of the judges of the Supreme Court upheld the decision. Davies and Maclennan, JJ., dissenting, in I'espect to the damages al- lowed for the loss of profits in consequence of the sale of pills in breach of the con- tract. Wampole v. Simard, xxxix., 160. 13. Champerty — Maintenance — Malici- ous motive — Cause of action — Costs of un- successful defence.] — A defendant against whom a lawsuit has been successfully pro- secuted cannot recover the costs incurred for his defence as damages for the unlawful maintenance of the suit by a third party who has not thereby been guilty of maliciously prosecuting unnecessary litigation. Brad- laugh v. Newdegate (11 Q. B. D. 1) distin- guished; Oiegerich v. Fleutot (35 Can. S. Ci R. 327) referred to. — Judgment appealed from (12 B. C. Eep. 272) affirmed. 2fewa- wander v. Giegerich, xxxix., 354. 14. Breach of contract — Measure of dam- ages — • Notice of special circumstances Collateral enterprises — Loss of primary and secondary profits — Costs.] — The plaintiffs sold defendant a boiler to be used in a mill to be set up in connection with his lumber- .ing operations and guaranteed its efficiency for that purpose. When delivered, it proved inefficient, and, while necessary alterations and repairs were being made, two months elapsed during whieih the defendant was deprived of th€ use of his mill, was obliged to keep a gang of men idle and un- der expense for wages and board, and, in unsuccessfully attempting to carry on his operations, temporarily hired another boiler. On 'being sued for the price of the boiler, the defendant counterclaimed for damages and, at the trial, was awared $427.11, being $277.11 for wages, board and expenses in- curred in consequence of the failure of the boiler to satisfy the guarantee, and also $150 for damages for the " loss of the use of the mill." By the judgment appealed from the first item for wages, etc., was re- jected and the item for " loss of the use of the mill " only allowed : — Meld, per Fitz- patrick, C.J. and Davies and Maclennan, JJ. (Idington, J., contra), that, as the loss of primary profits directly resulting from the breach of the contract only should have been allowed, the item of $150 for loss of anticipated profits should be rejected as be- ing merely secondary, speculative and un- certain ; but that the item assessed by the trial judge in respect of the wages, board and other expenses should be allowed, as they were direct and immediate results of such breach. — Duff, J., was of the opinion that the appeal should be allowed and the judgment by the trial judge restored. Cor- Mn v. Thompson, xxxix., 575. And see Contract. 15. Contract — Share of profits — Ahsohte or conditional undertaking — Construction o/ contract.] — -A contract between W. and B. recited that W. owned land to be worked as a gravel-pit ; that he was about to enter into contracts for supplying sand there- from; and that he had requested B. to assist him financially, to which B. had con- sented on certain conditions; it then pro- vided that "the said W. is to enter into contracts as follows," naming five corpora- tions and persons to whomihe would supply sand to a large amount at a minimum price per yard ; that B. would indorse W.'s note to the extent of $5,000 and have 60 days to declare his option to take a one-fourth inter- est in the profits from said contracts, or pu^ (ihase a one-third interest in the property and business ; that each party would account to the other for moneys received and ex- pended in connection with the property; that if either party wished to sell his inter- est he would give the other the first choice of purchase ; and that " each of the parties hereto agrees to carry out this agreement to the best of his ability according to the true 377 DAMAGES. 378 Intent and meaning of the same and to do what he can of mutual benefit to the parties hereto." B. Indorsed notes as agreed. W. entered into two of the five contracts, sold a quantity of sand and then sold the pro- perty, without notice to B., who brought an action claiming his share of the profits that would 'have been earned if the five con- tracts had 'been entered into and fully car- ried out : — Held, Fitzpatrick, C. J., and Mac- lennan, J., dissenting, that the undertaking by W. to enter into the five contracts was absolute, and having by the sale put it out of his power to perform it he was liable to B.,.who was entitled to damages on the basis of the contracts having been carried out. — Held, also, Duff, J., hesitante, that the clause quoted did not modify the rigour of the absolute covenant by W. to procure these contracts in any event. — Judgment of the Court of Appeal (10 Ont. W. K. 732) re- versed, and the judgment of the Divisional Court (9 Ont. W. R. 48) reversing that of Anglin, J. (8 Ont. W. B.. 4) restored. Bat- tle V. Willow, xl., 198. 16. Trespass — Gutting timber — Sale to iond fide purchaser — Action liy owner of land.'] — F. conveyed land to his wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to G., who bought in good faith and sold to another iond fide purchaser. In an action by F.'s wife against the two purchasers the money was paid into court and an interpleader issue granted to decide which of the claimants, the plaintiff or G., was entitled to have it : — Held, affirming the judgment of the Court of Appeal (16 Ont. L. R. 123) which re- versed the decision of the Divisional Court (14 Ont. D. E. 160) that the plaintiff was entitled to the whole sum. Dufii, J., ex- pressed no opinion on the question. — Held, also, Idington, J., dubitante, and Duff, J., dissenting, that if necessary the writ and interpleader order could be amended by ad- ding F. as a co-plaintiff with his wife. Qreer v. Faulkner, xl., 399. 17. Builders and contractors — Besponsi- tility for faults in construction — Latent de- fect — Installations in constructed building — "Automatic Sprinkler System" — Damages iy flooding — Injury sustained by subsequent purchaser — Right of action — Assessment of damages — Enterprise.} ■ — The plaintiff's auteur employed the defendant to install an " automatic sprinkler " in his building (sub- sequently sold to plaintiff) and, in execut- ing the work, the defendant made insufiici- ent connections wdth the city water-mains by means of a pipe already existing in the building. As the result of this fault in con- struction, the pipes became disjointed and the plaintiff's goods, consisting largely of cases containing wines in labelled bottles, were damaged. The plaintiff notified de- fendant that he would hold him liable for the damages thus sustained, and requested him to attend at an expert valuation to be made by fire insurance adjusters and valu- ators, but plaintiff disregarded the notifica- tion and. did not attend. The experts as- sessed the damages, in the manner usually adopted in similar cases of damages caused ■by fire, at $3,897.11, and the plaintiff's ac- tion was for this amount with amounts added for expenses incurred in repairs to the pipes, fees to the experts and for ex- penses of protest. The judgment appealed from (Q. R. 17 K. B. 449), affirmed the trial judgment (14 R. L. (N.S.) 172) main- taining the action, and held that, under arts. 1055, 1688 and 1696 C. C, the contractor was responsible for the damages sustained, that the subsequent purchaser had a right of action against him, as he was the per- son injured through the latent defects in construction, that the ' method of assessing damages adopted was a proper mode to fol- low under the circumstances, and that the repairs, experts' fees and costs of protest were items of damages which could properly be recovered in the action. This decision was aifirmed by the Supreme Court, on appeal, Davies, J., dubitante, for the rea- sons given by Tellier, J., at the trial, and Boss6 and Trenholme, JJ., in the court appealed from. McGuire v. Fraser, xl., 577. 18. Appeal — Jurisdiction — Court of Re- view — Reduction of damages — Confirmation of Superior Court judgment — R. S. C. [1906] c. 1S9, s. 40.]— There can be no appeal to the Supreme Court of Canada from a judgment of the Court of King's Bench, appeal side, quashing an appeal from the Superior Court, sitting in review, for want of jurisdiction. City of Ste. Gun6- gonde v. Gougeon (25 Can. S. C. B. 78) followed, Idington, J., dissenting. — In an ac- tion for damages where the plaintiff obtains a verdict at the trial and the Court of Re- view reduces the amount awarded thereon the judgment of the Superior Court is con- firmed and, therefoi-e, no appeal lies to the. Court of King's Bench, but there might be an appeal from the judgment of the Court of Review to the Supreme Court of Canada. Simpson v. Palliser (29 Can. S. C. R. 6) distinguished. Idington, J., dissenting. Hull Electric Co. v. Clement, xli., 419. 19. New trial — Misdirection — Questions for jury — Verdict on issues — Quantum of damages.] — An order for a new trial should not be granted merely on account of error in the form of the questions submitted to the jury where no prejudice has been suf- fered in consequence of the manner in which the issues were presented by the charge of the judge at the trial and the jury has passed upon the questions of substance. The judgment appealed from (18 Man. R. 134) was affirmed, the Chief Justice dissenting, and Davies, J., hesitante, as to the quan- tum of the damages awarded. Winnipeg Electric Ry. Co. v. Wold, xli., 431. 20. Action — Timber on pre-empted lands — Rights of pre-emptor — B.C. "Land Act," R.S. B.C. 1911, c. 129, ss. 77 et seq. and 132 — Issue on appeal— Practice — Negligence — Fire set by railway locomotive — Assess- ment of damages — Findings of trial judge.] — A pre-emptor of Crown lands, under the provisions of the British Columbia " Land Act," R. S. C. 1911, c. 129, who has not forfeited his rights, is entitled to maintain an action for such damages as he has sus- tained in consequence of the destruction of timber growing upon his pre-empted lands. — As to the quantum of damages, the trial Missing Page Missing Page 383 DAMAGES. 384 Vibrations, smoke, duct, etc. — Series of torts — Statutory franchise — Permanent injury — Abatement of nuisance — Prospective^ damages — Method of assessing damages — Art. 2261 C .0.2 — The permanent character of dam- ages cannot in all cases be assumed from the manner in which the works may have been constructed, and, where the nuisance might, at any time, be abated by the im- provement of the system of operation of machinery, etc., or the discontinuance of the negligent acts complained of, prospec- tive damages ought not to be allowed, nor could the assessment, in a lump sum, for damages, past, present and future, in order to prevent successive litigation, be justified upon grounds of equity or public interest. Judgment appealed from (Q. B. 13 K. B. 531), reversed, the Chief Justice and Girou- ard, J., dissenting. Fritz v. Hobson (14 Ch. D. 842) referred to. Gareau v. The Mont- real Street Railway Go. (31 Can.-S. C. R. 463) distinguished. Montreal Street Rail- way Co. v. Boudreau, xxxvi., 329. And see Nuisance. 31. Action for negligence — Practice — As- sessment of damages — Funeral expenses.] — ■ In an action by the father of a person whose death was occasioned by the negli- gence of the defendants, it was held that the plaintiff could not recover funeral and other expenses incurred, as damages in the action. Toronto Ry. Go. v. Mulvaney, xxxviii., 327. And see Negligence. 32. Insurance — Sprinkler system — Dam- age from leakage or discharge — Injury from frost — Application — Interim receipt.]— X policy ot insurance covered loss by leakage or discharge from a sprinkler system for pro- tection against fire but provided that it would not cover injury resulting, inter alia, from freezing. The water in a pipe con- nected with the system froze and, the pipe having burst, damage was caused by the consequent escape of water: — Held, affirm- ing the judgment of the Court of Appeal (14 Ont. L. R. 166) Davies, J., dissenting, that the damage did not result from freez- ing and the insured could recover on the policy. — In the Hawthorne case the major- ity of the court dismissed the appeal on the same grounds. The policy in that case was sent to the brokers who had applied for it on behalf of the assured shortly before, and the latter did not see it until the loss occurred. — Held, per Davies, J., that the contract of insurance was not contained in the policy, which the assured had no op- portunity to accept, but in what took place between the brokers and the agent of the insurers on applying for it and as the lat- ter informed the brokers that damage by frost was insured against the insured could recover. Canadiam, Casualty and Boiler Ins. Go. v. Boulter, Davies & Co., and Haw- thorne d Co., xxxix., 558. " 33. River improvements — Precaution against danger to existing constructions — • Alteration of natural conditions — Responsi- bility for damiages — Vis major.] — Where works constructed in a river so altered its natural conditions as to create a reservoir in which ice formed in larger quantities than it did prior to such works, and which, dur- ing the spring freshets after a severe win- ter, was driven with such force against the superstructure of a bridge as to partially demolish it, those who constructed the works are responsible for the damages so caused, notwithstanding that they had taken precautions for the protection of the bridge against like troubles, foreseen at the time of the construction of the works, and that the formation of ice in increased weight and thickness in the reservoir had resulted from natural climatic conditions during an unusually rigorous winter. — Judgment ap- pealed from (Q. R. 16 K. B. 410) affirmed. Montreal Light, Heat & Power Go. v. Atty.-Gen. of Quebec, xii., 116. 34. Municipal corporation — NegUgenee — Drainage — Capacity of drain — Vis major.] — F. brought action against the City of Ottawa claiming damages for the flooding of his premises by water backed up from the sewer with which his drain pipe was con- nected. — Held, Idington and DufE, JJ., dis- senting, that according to the evidence the sewer is capable of carrying off a fall of l^^ inches of water per hour, which is consid- ered as meeting the requirements of good engineering and is the standard adopted by all the cities of Canada and the Northern States; the city, therefore, was not liable.— Held, also, that a fall of rain at the rate of 3 inches per hour for nine minutes was one which could not reasonably be expected and tor which the city was not obliged to pro- vide. Faulkner v. City of Ottawa, xli., 190. 35. Negligence — Operation of railway — Solatium doloris — ■ Verdict — New trial] — The court refused to order a new trial or reduction of damages, under the provisions of articles 502, 503, C.P.Q., where it did not appear that, under the circumstances, the amount of damages awarded by the verdict was so grossly excessive as to make it evi- dent that the jury had been led into error or were influenced by improper motives. Davies, J., dissented in respect of that pari of the verdict awarding damages in favour of one of the sons who was almost 21 years of age and earning wages at the time de- ceased was killed. — Quwre. — In an action under article 1056 C. C. can a jury award damages in solatium dolorisi Robinson v. The Canadian Pacific Railway Co., ([1892] A. O. 481) referred to. Canadian Pacific Railway Go. v. Lachance, xlii., 205. 36. Negligence — Physical injuries — Mental shock — Severance of damages.]— T. was riding in a street car when it col- lided with a train. He was thrown vio- lently forward on the back of the seat in front of him, but was able to leave the car and walk a short distance towards his place of business when he collapsed and was taken home in a cab. He was laid up for several weeks and never recovered his former state of health. On the trial of an action against the Railway Co. one medical wit- ness gave as his opinion that the physical diock received by T. was the exciting cause of his condition, while others ascribed it to a disturbed nervous system. Negligence on the part of the company was not denied, ,385 DAMAGES. 3S{J but the trial judge was asked to direct the jury to distinguish, in assessing damages, betweeu the physical and nervous injuries, which he refuged to do. — Held, affirming the judgment of the Court of Appeal (22 Ont. L. E. 204), that the trial judge properly refused to direct the jury as requested ; that the injuries to T.'s nervous system were as much the direct result of the negligence of the company as those to his physical sys- tem, and he could recover compensation for both ; and that in any case it was impos- sible for the jury to sever the damages. Victorian Railway Commissioners v. Goul- tas (13 App. Cas. 222) distinguished. To- ronto Rway. Go. v. Toms, xliv., 268. 37. Extra-judicial seizure — Chattel mort- gagee — Sale through iailiff — Removal of mortgaged property — Negligence — Measure of damages.] — Where loss occurs to mort- gaged property in consequence of want of reasonable care in its removal from the place of seizure to the place of sale under the authority of a chattel mortgage, the proper measure of damages recoverable by the mortgagor is the amount of deprecia- tion in value caused by the negligent man- ner_ in which the removal was effected. Union Bank of Canada v. "MoRugh. xliv.. 473. And see Chattel Moetgaqe. 38. Tramway company — Construction of works — Independent contractor — ■ Dangicr- ous system — Injury to property — Negligence — -Exercise of statutory authority — Gorre- latioe duty — Damages — Special release.] — A company with statutory authority to construct a tramway acquired a strip of plaintiffs land for its right-of-way, the vendor granting a release for all damages which Tie might sustain by reason of the construction and operation of the tramway and the severance of his farm. The com- pany let the work to a contractor who, in the construction of the road-bed blasted away a hillside by a method known as "top- loftmg," thereby throwing large quantities of rock outside the right-of-way and upon plaintiff's adjoining lands in such a man- ner as to interfere with his use thereof. This injury could have been avoided by proper precautions. — Held, affirming the judgment appealed from (18 B. C. Eep. 81), Fitzpatriek, C.J., hesitante, that the company was responsible in damages for the omission of their contractor to take precautions necessary to prevent his blast- ing operations producing the injury to the plaintiff's lands. — Held, further, that the general language of the release should be so construed as to restrict it to the mat- ters m regard to which it had been granted with reference to the proper exercise of the powers of the company to construct the tramway m question, and that it could not apply to injuries caused through negligence. —Per Duff, J. — Where statutory powers respecting the construction of works are be- ing exercised through an independent con- tractor, the correlative obligation of the beneficiaries of those powers to see that due care is taken to .avoid unnecessary injuri- ous consequences to the property of other S.C.D.— 13 persons is not discharged when their con- tractor fails to perform that duty and they are responsible accordingly. Hardaker v Idle District Council ((1896) 1 Q. B. 335) ^^■!^ ,^?iiV.°^ "'■ Beaconsfield Rural Counl ctl ((1911) 2 Ch. 188), referred to. Van- couver Power Go. v. Hounsome, xlix., 430. 39 Negligence — Sale of ruined buildina — Personal responsibility of vendor, xli., . See Negligence. 40. Municipal corporation— Contract with company — Franchise for water supply — Protection against ft,re—Negligence-~-Liahil- ity of company to ratepayer— Delit., 1., 356. See Municipal Coeporation. 6. Nuisance. 41. Rivers and streams — Industrial im- ni n\~ ^fP«''*««« and arlitration^Right of action— Measure of damages— Practice— ■a-Zf /'"'"'O'^'T^leading-New objection laiied on appeal— Prescription— R. 8 O 1888 a,^s. 5535, 5536 - Arts. ^2, '2261 in.i^- P^'o^sions of the statutes respect- ing the improvement of watercourses in the thp°T-\f^ i^","""^^' P^™*t i^^ raising of of U^f^' ,"■ ■'^■'^' '''"'^^''^ ''y proprietors ot lands adjoining streams; this right is tfon -fo '°i,*'',^ "^''"''y t° ^«ke compensa !nn. f ilamages resulting to other per- sons from such works.-The mode of ascer- ainment of such damages by the arbitra- rto% ^^^ri"" provided by article 5536 of the Revised Statutes of Quebec, 1888, does not exclude the right of action to recover compensation m the courts.— In such cases the measure of damages is the amount of compensation for injuries sustained up to the time of the action; they ought not to be assessed once for all, en bloc, but recourse may be reserved in regard t^ future dam ages arising from the same cause. — Per AngJin, J.— An action, brought in 1908 for recovery of damages in respect of injuries occasioned hy improvements executed I'n iaU4, upon works constructed many years before that time, is not subject to the pre- sCKp ion of thirty years; n^r can the pre- scription provided by article 2261 of the Civil Code be applied where the action has been commenced within two years from the tdined. Gale v. Bureau, xliv., 305. And see Rivers and Streams. 42. Railways— Construction and opera- iZr ^'"l?*">\Pl'^»s~ Delay in notice to treat — Action to compel expropriation- Compensation m respect of lands not ac- quired - Mandamus - Use of highway - Crossing public lane— Nuisance, xliv., &. See Railways. 43. Municipal corporation — Building by-law— Dangerous constructions — Abate ment of nuisance — Condition precedent- Notice — Order to repair — Demolition of 387 DAMAGES. 388 structure — Trespass — Forcible entry ■ — Tort — Construction of statute — Montreal city charter, xliv., 579. See Municipal Coepoeation. 7. Waiveb. 44. Pleading — Cross-demand — Com- pensation — Arts. 3, 203, 215, 217, C.P.Q.-^ Practice — Construction of contract — Liqui- dated damages — Penal clause — Arts. 1076, 1187, 1188, C. C. — Estoppel^Waiver.'i— By a clause in a contract for the construc- tion of works, the completion thereof was undertaken within a specified time and in default of completion as stipulated it was agreed that the contractor should pay " as liquidated damages, and not as a penalty, the sum of fifty dollars for every subsequent day until the completion." The works were not completed within the time limited, and, in consequence, both parties joined in a petition to a municipal corporation for ex- tension of the time during which subsidies it had granted towards the cost of the works could be earned. The petition was granted and the works were completed within the extension of time allowed by the corporation : — Held, Nesbitt and Idingtou, JJ., dissenting, that damages accruing un- der the clause in question did not, upon mere default, become sufficiently liquidated and ascertained so as to be set off in com- pensation against a claim upon a promis- sory note. — Held, per Giroxiard and Davies, J.J. (Nesbitt and Idington, J J., contra), that by joining in the petition for extension of time the party in whose favour the penal clause might take effect had waived the right to claim damages thereunder during the period of the extension so obtained in the interests of both parties to the contract. Ottawa, N. ti W. Railway Co. v. Dominion Bridge Co., xxxvi., 347. And see Contract. 45. Placer mining — Disputed title — Tres- pass pending litigation — 'Colour of right — Invasion of claim — Adverse acts — Sinister intention — Conversion ■ — Blending mater- ials — Accounts — Assessment of damages — Mitigating circumstances — Compensation for necessary expenses — Estoppel — Stand- ing-by — Acquiescence.'] — After a favourable judgment by the Gold Commissioner in re- spect to the boundary between contiguous placer mining locations and while an appeal therefrom was pending, the defendants, with the knowledge of the plaintiffs, en- tered upon the location and removed a quan- tity of auriferous material from the dis- puted and undisputed portions thereof, in- termixed the products without keeping any account of the quantities taken from these portions respectively, and appropriated the gold recovered from the whole mass. — In an action for damages, taken subsequently, the plaintiffs recovered for the total value of the gold estimated to have been taken from the disputed portion of the claim, without deduction of the necessary expenses of work- ings and winning the gold : — Seld, affirm- ing the judgment appealed from, Davies, J., dissenting, that a correct appreciation of the evidence disclosed a sinister intention on the part of the defendants, that they had deliberately blended the materials taken from both parts of the location, converted the whole mass to their own use and thereby destroyed the means of ascertaining the re- spective quantities so taken and the propor- tionate expense of recovering the precious metal therefrom, and that, consequently, they were liable in damages for the total value of so much of the intermixed pro- ducts as were not strictly proved to have come from the undisputed portion of the locatiofl. — Quwre- — Does the English rule governing the assessment of damages in re- spect of trespasses in coal mines supply a method of assessment applicable in its en- tirety to placer mining locations? Lamb v. Kincaid, xxxviii., 516. 8. Waeeanty. 46. Sale of goods by sample — Delivery — Condition f.o.b. — " Sale of Goods Act," R S. M. 1902, s. 152 — Notice of rejection — Reasonable time — Breach of warranty — Damages, xli.,.453. See Sale. 9. Othee Cases. 47. Mis-user of canal lands — Condition subsequent — Jurisdiction of Exchequer Court of Canada — Forfeiture. Wright y The Queen, Cout. Cas. 151. 48. Expropriation — Compensation — As- sessment of damages. Warburton v. Attor- ney-General for Canada, Cout. Cas. 307. 49. Vendor and purchaser — Sale of lands — Misrepresentation — Fraud — Error Re- scission of contract—Sale or exchange— Da- tion en paiepient — Improvement on pro- perty given in exchange — Option of party aggrieved^Action to rescind— Action quan- tum mmoris— Latent defects — Damages- Warranty — Agreement in loriting — Formal deed, xxxiv., 102. See Vendoe and Pdeohaseb. 50. Public works — Lamds injuriously an ected— Closing highway — Inconvenient substitute— Right of action, xxxiv., 570. See Public Work. 51. Water commission — Construction of statute— Damages to existing works — Ap- propriation of water, xxxiv., 650. See Wateewoeks. 52. Special leave to appeal — Matter in controversy— Assessment of damages— Costs XXXV., 184. See Appeal. 53. Construction of contract — Implied covenant— Verdict— New trial, xxxv., 186. See CONTKACT. cede 54. Practice — Pleading— Condition pre dent — Construction nf atniuto To t^.-^j Construction of statute — 59 Vict. 389 DAMAGES. 390 c. -62, ss. 9, 2d (B.C.) — Mineral claim — Ex- propriation — Water courses — Water- works — Waiver — Injunction — Trespass, XXXV., 309. See Expropriation. 55. Construction of agreement — Sale of goods — Breach of contract — Specific per- formance — Damages, xxxv., 482. See Contract. 56. Pleadings — Procedure — Evidence, xxxvi., 7. See Evidence. 57. Constitutional law — Railway com- pany — Negligence — Agreements for exemp- tion from liability — Power of Parliament to prohibit, xxxvi., 136. See Railways. 58. Sale of goods — Suspensive condition — Term of credit — Delivery — Pledge — Ship- ping Mils — Bills of lading — Indorsement of Mils — Notice — Fraudulent transfer — Insol- vency — Banking — Bailee receipt — Brokers and factors — Principal and agent — Resilia- tion of contract — Revendicatioii — Practice — Pleading, xxxvi., 406. See Sale. 59. Admiralty law — Navigation — Nar- row channels — Rule of the road — Look-out — Meeting ships — Collision — Special rule of port — Sorel harbour regulations — Lights and signals — Negligence — Evidence — Dam- ages, xxxvi., 564. See ADMiRAXTy Law. 60. Negligence — Navigation of inland ivaters — Collision — Government ships and vessels — " Public work " — " The Exche- quer Court Act," s. 16 — Construction of statute — Right of action, xxxviii., 126. See Negligence. 61. Breach of contract — Breach of trust — Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Account — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel, xxxviii., 198. See Trusts. 62. Negligence — Trespass — Horse racing — Intruder upon race-track — Carelessness, _ xxxviii., 226. See Negligence. 63. Public work — Contract — Change in plans and specifications — Waiver by order in council — Powers of executive — Construc- tion of statute — Directory and imperative clauses — • Words and phrases — " Stipula- tions " — Exchequer Court Act, s. 33 — Extra works — Engineer's certificate — In- structions in writing — .Schedule of prices — Compensation at increased rate — Dam- aiges— Right of action — Quantum meruit, xxxviii., 501. See Contract. 64. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — Subse- quent issue of placer mining licenses — Pleading and practice — Statement of claim — Demurrer — Cause of action, xxxviii., 542. See Mines and Mining. 65. Possessory action — Trouble de pos- session — Right of action — Actio negatoria servitutis — Trespass — Interference with watercourse — Agreement as to user — Ex- piration of license by non-use — Tacit re- newal — Cancellation of agreement — Re- course for damages, xxxix., 81. See Action. See Practice. 66. Rights appurtenant to dominant tene- ment — Construction of ice-house — Change in natural conditions — Flooding of servient tenement — Aggravation of servitude — /ii- junction — Abatement of nuisance — Arts. 406, 501, 5Ji9 G. C, xxxix., 103. See Nuisance. 67. Constitutional law — Construction of statute — ■" Crown Procedure Act " — R. 8. B. C. c. 57 — Duty of responsible minister of the Crown — Refusal to submit petition of right — Tort — Right of action — Pleading — Practice — Withdrawal of case from jury — New trial — Costs, xxxix., 202. See Action. 68. Common fault — Concurrent findings — Apportionment of damages, xxxix., 332. See Negligence. 69. Malicious prosecution — Reasonable and probable cause — Bond fide belief in guilt — Burden of proof — Right of action — Art. 1053 C. C. — Pleading and practice, xl., 128. See Malicious Prosecution. 70. Negligence of fellow servant — Opera- tion of railway — Defective switch^ — Public work — Tort — LiahilHy of Crown — Right of action — Exchequer Court Act, s. 16 (c) — "Lord Campbell's Act " — Art. 1056 C. G. xl., 229. See Negligence. 71. Admiralty law — Jurisdiction of the Exchequer Court of Canada — Claim under mortgage on ship — Action in rem — Pleading — Abatement of contract price — Defects in construction, xl., 418. See Ships and Shipping. 72. Carriers by water — Special contract — Exemption from liability — Construction of terms — "At owner's risk " — " Baggage " — Wilful misconduct, Cam. Cas. 66. See Carriers. 73. Railways — Negligence — Contribu- tory negligence — Accident at crossing — Life insurance — Deduction from damages — Prac- tice — Appeal — Equal division of opinion —Costs, Cam. Cas. 228. See Negligence. 74. Government railway — Expropriation — Injury to property — Crossing at embank- ment and cutting — Riparian rights — Access 391 DEBTOE AND CEEDITOE. 392 to shore — Assessment of damages, Cam. Cos. 344. See Railwats. 75. Municipal corporation — Highway — Negligence — Bad state of repair- — Snow cleaning — Loss of profits — Right of action — Injuries to omnihus owner, Cam. Gas. 569. See Action. , 76. Municipal corporation ■ — Drainage — Construction of sewers — Nuisance — Injunc- tion — Right of action — Practice, Oout. Gas. 162. See Appeal. 77 Municipal corporation — Reservation for highway — Opening iy-road. Gout. Gas. 210. See Highway. 78. Negligence — "Lord Gamplell's Act " — Findings of jury — Verdict — Assessment of damages. Gout. Gas. 343. See Negligence. 79. Admiralty law — Salvage — Injury to salving ship — Necessities of service — Sea- manship — Appeal on nautical question, xli., 168. See Admiealty Law. 80. Appeal — Final judgment — Jurisdic- tion, xli., 13. See Appeal. 81. Appeal — Amount in controversy — Re- ference to assess damages — Final judgment, xli., 603. See Appeal. 82. Employer and employee — Compensa- tion for injury — Contributory negligence — Construction of statute — "Worhmen's Com- pensation Act " — 2 Edw. VII. c. l-k, s. 2 — Remedial legislation — Refusal of damages — Right of appeal — Evidence, xliv., 106. See Appeal, 1 ; Woekmbn's Compensation Act. 83. Appeal — Nature of action — Equitable relief — " Supreme Court Act," s. 38c — Ap- peal from referee — Final judgment — Assess- ment of damages, xliv., 284. See Appeal. 84. Municipal corporation — Water-rates — Statutory authority — Construction of stat- II t( — Water for domestic, fire and other pur- poses — Motive power — Discretion of council, xliv., 606. See Municipal Gorpobation. ing of lands — Servitude — Objection to juris- diction — Practice — Costs, xlv., 292. See Appeal. 87. Contract — Sale of hay — Rejection — Conversion — Counterclaim — • Evidence. Poirier v. The King, xlvi., 638. I 88. Contract — Construction — Conditions '■ — Mutual performance, lii., 514. See Contkact. DAMS. 1. River improvements — Protective works — Continuing damages, xxxiv., 502. See Damages. 2. Water commission — Construction of statute — Damages to existing worlcs — Ap- propriation of waier, xxxiv., 650. See Waterworks. DATION EN PAIEMENT. Vendor and purchaser — Sale of lands- Misrepresentation — Fraud — Error — Re- scission of contract — Sale or exchange — Dation en paiement — Improvements on pro- •perty given in exchange — Option of party aggrieved — Action to rescind — Actio quantum minoris — Latent defects — Damages — War- ranty — Agreement in writing — Formal deed, xxxiv., 102. See Contract — Vendor and Pbrchasek. DEATH DUTY. See Succession Duty. DEBENTURES. Crown — Breach of trust — Purchase of debentures out of Common School Funi— Knowledge of misappropriation of moneys-- Payment of interest — Statutory prohibition — Evasion of statute — Estoppel against Crown — Action — Adding parties — Practice, xxxviii., 62. See Quebec North Shore Turnpike Eoab Trust. 85. Fishery and games leases — Personal servitude — Use and occupation — Right of ac- tion — Action en complainte — Renewed leases — Priority — Worlcs to facilitate lumbering operations — Watercourses — Driving logs — Storage dams — Penning bach waters out of tract of transmission — Injury to preserves — Injunction — Demolition of works, xlv., 1. See Kivees and Streams. 86. Appeal — Jurisdiction — Matter in controversy — Damming watercourse — Flood- DEBTOR AND CREDITOR. 1. Composition and Discharge, 1-2. 2. Fraud against Creditors, 3-4. 3. Limitation of Actions, 5. 4. Payment, Interest, 6-7. 5. Preferences, 8-11. 6. OtiTer Cases, 12-33. 393 DEBTOR AXD CREDITOR. 39-t 1. GOMPOSITIOX AND DiSCHABGE. 1. Composition and discharge — Payment of deit — Reservation of security — Novation.] — By deed of composition and discharge the bank agreed to accept composition notes in discharge of its claim against the plaintiff at a rate in the dollar, special reserve being made as to the securities it then held foi- the debt due by the plaintiff. The original debt was to revive in full on default in pay- ment of any of the composition notes. Upon receiving the composition notes the bank surrendered the notes representing the full amount of its claim -.^Held, reversing the judgrdent appealed from, that the effect of the agreement coupled with the reservation made was that the debtor was to _ be dis- charged merely from personal liability on payment of the composition notes, but that the securities were to be still held by the bank for the purpose of reimbursing itself, if possible, to the extent of the balance of the original debt. — Held, also, that the sur- render pf tile original notes by the bank did not extinguish the debt they represented and under the circumstances there was no nova- tion. Banqve , d'Hochelaga v. Beauchamp, xxxvi!, 18. 2. Construction of deed — Ambiguity — Dis- charge of debtor — Contract — Illegal con- sideration — Right of aciiow.]-^Where the language of an instrument is ambiguous or obscure the intention of the parties should be ascertained by consideration of the cir- cumstances attending the execution of the agreement. — A ' deed of settlement between B. and a hank declared that he owed the bank $4,731.61 for interest on an advance in respect to a lottery scheme and a further sum of $18,762.02 for advances on an ac- count for the purchase of stock, two notes being given for these amounts, respectively, and the shares of stock being pledged as security for the large note only. Subse- auently, the directors of the bank passed a resolution authorizing the discharge of B., on payment of $15,000 by one V., "jusqu'd, con- currence de lai dite somme de $15,000 " and the transfer of the shares to V. This resolu- tion was followed by a deed of compromise, V. paying the $15,000, and obtaining a trans- fer of the shares, and it was thereby declared that, by the transaction B. was discharged in so far as concerned the bank's advances on the stock account " vis-a-vis la tanque des avances gu'elle lui a faites du chef susdit rhentionn^es en un acte de rdglement," etc., the resolution being annexed and the deed of settlement referred to for imputation of tne payment, and V. was to become creditor of B. under conditions mentioned, "jusqu'i concurrence de $15,000," the note which had not become due and the securities being allowed to remain in possession of the bank. In an action by D. to whom the notes held by the bank were assigned ; — Held, revers- ing the judgment appealed from, that the effect pf the deed of compromise was to dis- charge B. merely to the extent of the $15,000 on account of the larger note, and further, affirming the judgtnent appealed from, that no. action could' lie 'ugpon the smaller note as It represented interest on a claim in relation to a contract of an illegal nature. L' Associa- tion St. Jean Baptiste v. Brault (.30 Can. S. C. R. 598) followed. Dvsrrres v. Brault xxxvii., 613. 2. Fraud against Cbeditoes. 3. Banks and bankiiiij — ^Security for ad- vance — Assignment of goods — Claim on proceeds of sale — 53 Vict. c. 31, s. 7'f (£>.).] — A bank to which goods have been transferred as security for advances under s. 74 of the Bank Act, 1890, can follow, the proceeds of sale of goods in the hands of a creditor of the assignor to whom the latter has paid them when the purchaser knew, or must be presumed to have known, that the same belonged to the bank. Union Bank of Halifax v. Spinney, xxxviii., 187. 4. Title to land — Conveyance in fraud of creditor — Husband and wife — Advancement — Trustee — Equitable relief — Restitution — Evidence — Statute of Frauds.] — Lands which, at the time of the transaction, would be exempted from seizure and sale under (xi'oution by the Alberta " Exemptions Or- dinance" were purchased by S.'and, with the intention of protecting them from pur- suit by his judgment creditor, he caused them to be conveyed to his wife, on a parol agreement with her that the title should remain in her name until the judgment debt. was satisfied. The debt was subsequently paid by S. and he brought suit against his wife for a declaration that she held the lands in' trust for him and for reconveyance. — Held, pur curiam. — That the court should not grant relief to the husband against the consequence of his unlawful attempt to delay and hinder his creditor, although the illegal purpose had not been carried out. Muckle- ■itone V. Brown (6 Ves. 68) ; Taylor v. Chester (L. R. 4 Q. B, 309) foUowed. Rochefoucauld v. Bousted ((1897), 1 Ch. 196) referred to. Judgment appealed from (8 Alta. L. R. 417), reversed, Anglin, J., dissenting on the ground that the convey- ance of exempted lands could not prejudice the rights of creditors and, although it had been made with fraudulent intent, it was not fraudulent as against them. Mundell v. Tinkis (6 O. R. 625) ; Mathews v. Feamer (1 Cox 278) ; Rider v. Kidder (10 Ves. 360) ; Day v. Day (17 Ont. App. R. 157) ; Symes v. Hughes (L. R. 9 Eq. 475), and Ta:ylor v. Bowers (1 Q. B. D. 291), referred to. — Per Duff, J. — In the absence of proof that his creditor had not been prejudiced in consequence of the conveyance being taken in the name of his wife the plaintiff was not entitled to relief. Seheuerman v. Scheuer- man, lii., 625. 3. Limitation of Actions. 5. Assignment of debt — Sheriff's sale — Equitable assignment — Statute of Limita- tions^Payrhent — Ratification — Principal and agent.] — In Nova Scotia book debts cannot be sold under execution and the .'act of the judgment debtor in allowing such sale does not constitute an equitable assignment of such debts to the purchaser. — The pur- chaser received payment on account of a debt so sold which, in a subsequent action by the creditor and others, was relied on to 395 DBBTOE AND CEEDITOE. 396 prevent the operation of the Statute of lamitations.— -ffeJd, that though the credi- tor might be unable to deny the validity of the payment he could not adopt it so as to obtain a right of action thereon, and the payment having been made to a third party who was not his agent did not interrupt the prescription. Keighley, Mawstead £ Oo. v. Dwrant ([1901] A. C. 240) followed. Moore v. Roper, xxxv., 533. 4. Payment, Interest. 6. Vendor and vendee — Sale of securities — Interpretation of contract — -Arts. 1018, 1019 C C. — Railways — Debtor and creditor — Right of way claims — Legal expenses in- curred in settlement.] — ^The plaintiffs sold the defendants stock and bonds of the P. & I. Ey. Co. with an agreement in writing which contained a clause stipulating as a condition that the vendees might declare the option of paying a further sum of $30,- 000, in addition to the price of sale, in con- sideration of which the vendors agreed to pay all the debts of the P. & I. Ky. Co. except certain specially mentioned claims, some of vt^hich were in respect of settlement for the right of way. The final clause of the agreement was as follows : — 'After two years from the date hereof the Montreal Street Railway Company will assume the obliga- tion of settling any right of way claims which the vendors may not previously have been called upon to settle, and will contri- bute $5,000 towards the settlement of any such claims which the vendors may be called upon to settle within the said two years. Any part of the sai3 sum not so expended in said two years or required by the pur- chasers so to be, shall be paid over to the vendors at the end of the said period, it being understood that the purchasers wiU not stir up or suggest claims being made." The vendees exercised the option and paid the $30,000 to the vendors who reserved their right to any portion of the $5,000 to be contributed towards settlement of the right of way claims which might not be expended during the two years. An un- settled claim for right of way, in dispute at the time of tie agreement, was, subse- quently, settled by the vendors within the two years. The question arose as to whe- ther or not this claim, then known to exist, and legal expenses connected therewith, was a debt which the vendors were obliged to dis- charge in consideration of the exitra $30,000 so paid to them, and whether or not the $5,- 000 was to be contributed only in respect of right of way claims arising after the date of the agreement : — Held, aflBrming the judgment appealed from, that the agree- ment must be construed as being controlled by the provisions of the last clause thereof; that said last clause was not inconsistent with the previous clauses of the agreement and that the vendees were bound to contri- bute to the payment of such claims and legal expenses in respect of- the right of way to the extent of the $5,000 mentioned in the last clause. Montreal Street By. Co. V. Montreal Construction Co., xxxviii., 422. 7. Surety — Statute of Frauds — Advances to company — Third party's promise to re- pay.] — ^B., a director of a mining company, advanced money for the company's pur- poses, which G., the president and largest shareholder, orally agreed to repay. — Beld, affirming the decision of the Appellate Divi- sion (35 Ont. L. R. 218), which reversed the judgment for the defendant at the trial (34 Ont. L. R. 210), Fitzpatrick, C.J., and Idington, J., dissenting, that this was not a promise to pay a debt of the company and void as a contract by virtue of the fourth section of the Statute of Frauds; that 6. was a primary debtor for the monies ad- vanced by B. and liable to the latter for their re-payment. Oillies v. Broum, Uii., 557. 5. Pbefekences. 8. Preferential assignment — Debtor ani creditor — Pressure — Knowledge of insol- vency — Yuhon Con. Ord. 1902, c. 38, ss. 1 and 2.] — The effect of the second section of the Yukon Ordinance, eh. 38, Consoli- dated Ordinances, 1902, is to remove the doctrine of pressure in respect to preferen- tial assignments, and consequently, all as- signments made by persons in insolvent cir- cumstances come within the terms of the or- dinance. — In order to render such an assign- ment void there must be knowledge of the insolvency on the part of both parties and concurrence of intention to obtain an un- lawful preference over the other creditors. Molsons Bank v. Halter (18 Can. S. C. R. 88) ; Stephens v. MeArthur (19 Can. S. C. R. 446) ; and Gibbons v. McDonald (20 Can. S. C. R. 587) referred to. Bennallack V. Bank of British North America, ixxvi., 120. 9. Insolvency — Fraudulent preference — Security to creditor — Knowledge of insol- vency— R. S. 0. [1897] c. U7, s. 2, as. i and 3.] — G. had assisted S. with loans and also guaranteed his credit at the Dominion Bank to the extent of $3,000. His own cheque at the bank having been refused pay- ment, until tbi indebtedness of S. of $1,900 was settled, the latter promised to arrange it within a month which he did by trans- ferring to G. goods pledged in the Imperial Bank, G. paying what was due to both banks. Shortly after S. sold out his stock in trade and absconded owing large sums to foreign creditors and being insolvent. On the trial of a creditor's action to set aside the transfer to G. as a fraudulent prefer- ence the manager of the Dominion Bank testified that G.'s cheque was not refused from' any doubt of S.'s solvency but because he had beard that S. was dealing with another bank, and he wished to close the account; —Held, Idington and Duff, JJ., dissenting, that under the evidence produced, G. had no reason to suppose, when the goods were transferred, that S. was insolvent, and he had satisfied the onus placed upon him by the provincial statute of shewing that he had not intended to hinder or defraud the creditors of S. Baldocchi v. Spada, j.z%vau 577. 39) DEBTOE AND CEEDITOE. 10. Insolvency — Preferential transfer of cheque — Deposit in private iank — Applica- tion of funds to debt due banker — Sinistei- intention — Payment to creditor — R. 8. 0. {1397) e. IJft, s. S (i).]— McG., a mer- chant in insolvent circumstances, althougli not aware o"f that fact, sold his stock-in- trade and deposited the cheque received for the price to the credit of his account with a private banker to whom he was indebted, at the time, upon au overdue promissory note that had been, without his knowledge, charged against his account a few days be- fore the sale. Within two days after mak- ing the deposit, McG. gave the banker his cheque to cover the amount of the note. In an action to have the transfer of the cheque, so deposited, set aside as preferential and void : — Held, affirming the judgment ap- pealed from (13 Ont. L. R. 232) that the transaction was a payment to a creditor within the meaning of the statute, R. S. O. (1897) c. 147, s. 3, s.-s. 1, which was not, under the circumstances, void as against creditors. Robinson, Little <& Co. v. Scott & Son, xxxix., 281. 11. Agreement for extension of time — ■ Preference — Pvblic order — Advantage to creditor — Security for debt — Conflict of laws — Lex loci.] — Where a debtor obtains the assent in writing of his creditors to an extension of time for payment of their re- spective debts, upon an undertaking that he will not " give a preference " without their consent, a prior secret arrangement by which one of such creditors obtains se- curity and more favourable terms of pay- ment than that provided in the agreement is void as a fraud against the other credi- tors and as against public order. — The debtor carried on his business in Toronto, where the deed granting the extension of time was drawn and executed. H., a New York creditor, obtained security by means of the debtor's promissory notes, drawn up and made payable in Toronto and indorsed by the defendant, residing in Montreal. The action on the notes was brought, in Quebec, against the indorser. -^ Beld, per Idington and Auglin, JJ., that the case should be de- cided according to the law of Ontario if there is any difference between it and the Quebec law on the subject-matter. — Judg- ment appealed from (Q. R. 25 K. B. 421), affirmed. Hochberger v. Rittenberg, liv., 6. Othee Cases. 12. Execution of will — Mismanagement of estate — Fraud against creditors of benefici- ary. Union Bank of Canada v. Brigham, Gout. Gas. 355. 13. Lease — Sheriff's sale — Title to land — Insurable interest — Fire insurance — Trust — Beneficiary — - Principal and agent — Fraudulent contrivances — Estoppel, xxxiv.. See Landlord and Tenant. 14. Company law — Payment for shares — Transfer of business — Debt due partnership —Sel-off — Counterclaim — Accord and sat- isfaction — Liability on subscription for 398 '?'■ '■ shaics — R. S. B. C. o. Jfli, ss. 50, 51, xxxiv., 160. See CoMPANT. 15. Contract — Promissory note — Secur- ity for debt — Husband and wife — Parent and child — Pressure, xxxv., 393. See CONTEACT. 16. Assignment of obligation — Part per- formance — Notice of debtor — Acceptance of creditor by suit to set aside obligation — Notice — Signification of transfer of debt — Art. 1517 C. C, xxxvi., 686. See Action. 17. Surety — Collateral deposit — Ear- marked fund — Appropriation of proceeds — ■ Set-off — -Release of principal debtor — Con- structive fraud — Discharge of surety — Right of action — Common counts — -Equitable recourse, xxxvii., 331. See Principal and Siieetx. 18. Equitable mortgage — Mines and min- ing — Lease of mining lands — Sheriff's sale — Purchase by judgment creditor of mortgagee — Registry laws — ■ Priority — Actual notice — Lien for Crown dues paid as rent — C. 8. N. B. (1903) c. SO, s. 139, xxxvii., 517. See Mines and Mining. 19. Cause of action — Limitation of actions ■ — Contract — Foreign judgment — Yukon Ordinance, c. 31 of 1890 — Statute of James — Statute of Anne — Lex fori — Lex loci con- tractus — Absence of debtor, xxxvii., 546. See Limitation op Actions. 20. Assignment by mortgagor for benefit of creditors — Priorities — Assignment of claims of execution creditors — Redemption — Assignments and Preferences Act, s. 11 (Ont.), xxxix., 229. See Mortgage. 21. Liquidation of insolvent corporation — Distribution and eollocaiion — Privileged claim — Expenses for preservation of estate — Fire insurance premiums — Practice — Ex parte inscription — Notice, xxxix., 318. See Company Law. 22. Married woman — Separate property — Liability for debts of husband — Registry law — "Real Property Act" — " Married Wo- men's Act" — Conveyance during coverture, xl., 384. See Married Woman. 23. Interpleader issue — Chattel mortgage — -Hire receipt — Equitable doctrine, (Sam. Cas. 30. See Chattel Mortgage. 24. Administration proceedings — Statute of Limitations — Champertous agreement- Practice, Cam. Cas. 119. See Champerty. 25. " Winding-up Act " ■ — Insolvent bank — Appointment of liquidators ■ — Appointing another bank — Discretion of judge — Appeal, (xviii., 707), Cam. Cas. 209. See " Winding-up Act." 399 DEDICATIOIsr. 400 26. Assignment of chose in action — Notice — Statute of limitations — - Acknowledgment of delt — Interest, Cam. Cas. 239. See Limitation of Actions. 27. Sale of goods — Set-off — Partnership- Evidence — Books of account ■ — Practice — New trial — • Rtji^ucing verdict on appeal, Cam. Cas. 282. See New Tkiai. 28. Partnership — Dissolution — New firm iy continuing partner — Liability of new part- nership — Rights of creditors — Trust — Novation, Cam. Oas. 323. See Trusts. 29. Contract — Conditional sale — Guaran- tee — Rescission — Mortgagor and mortgagee — Power of sale — Creditor retaking posses- sion — Continuing liahility • — Appropriation of money received by creditor — Release of debtor — Discharge of surety, Oout. Cas. 217. See Chattel Mortgage. 30. Trust — Banking — Hypothecation of securities — Terms of pledge — Duty of pledgee, xli., 561. See Banks ajstd Banking. 31. Donatio inter vivos — Ante-nuptial con- tract — Qife to wife — Payment at death of husband — Institution contractuelle — Oner- ous gift, xliv., 197. See Donation. 32. Powers of eompowi/ — Sale of shares — Security by mortgage — Subsequent creditor — Status — Jurisdiction — Foreclosure. Hughes v. W: Electric & Mfg. Co., 1., 626. See Company, 3. 38. Construction of statute — Alberta "Assignments Act "■ — Assignment for benefit of creditors — Occupation of leased premises — Liability of official assignee. Northwest Theatre Go. v. McKinnon, lii., 588. See Assignment. ing been effected when P. was in ignorance of the real state of affairs, it did not bind him as against D., from whom he could re- cover as damages, the difference between the par value of his remaining shares and their market value at the date of such com- promise. — Judgment of the Court of Appeal (12 Ont. W. K. 824) reversed and that of the trial judge (9 Ont. W. R. 380) affirmed by a Divisional Court (11 Ont. W. R. 127) restored. Pitt v. Dickson, xlii., 478. 2. Misrepresentation — Fraud — Error — Rescission of contract — Latent defects — Damages- — Action — Option, xxxiv., 102. See Contract. 3. Contract — Deceit and fraud — Rescis- sion — Evidence — Concurrent findings of lower courts — Duty of second appellate court, xxxiv., 145. See Contract. 4. Mines and mining — Vendor and pur- chaser — Sale of mining locations — Consid- eration in lump sum — Separate valuations — Misrepresentation — Deceit and fraud — Measure of damages, xxxvi., 279. See Vendor and Purchaser. 5. Company — Sale of shares — Misrepre- sentation — ■ Fraud — Action for deceit — Ac- cord and satisfaction, xl., 437. See Fraud. 6. Sale of land — Misrepresentation — Hon- est belief — Pleading — Amendment — Adding new cause of action, xlvii., 399. See Saxe. DECEIT. 1. Action for deceit — Agreement for sale of lands — False representations — Compro- mise — Notice.] — P., living in Montreal, owned stock in a Cobalt mining company, and D., of Ottawa, looked after his interests therein. Being informed by D. that the mine was badly managed and the property of little value, and that other holders were selling their stock, P. signed an agreement to sell his at par. D. assigned this agree- ment to a third party. Later P., learning that . the stock was selling at a premium, and believing that he had made an improvi- dent bargain, entered into negotiations with the holder of his agreement, and a compro- mise was effected by a portion of P.'s hold- ings being sold to the assignee at par and the remainder returned to him. . It trans- pired afterwards that D. and the assignor were in collusion .to get possession of the stock, and P. brought action against D. for damages. — Held, that the compromise hav- DECREE. See Judgment. DEDICATION. 1. Highway — Conveyance ■ — Acceptance by public — User.'] — ^An action was brought by the City of Toronto against the G. T. Ry. Co. to determine whether or not a street crossed by the railway was a public high- way prior to 1857, when the company ob- tained its right of way. It appeared on the hearing that in 1850, the Trustees of the General Hospital conveyed land adjoining the street, describing it in the deed as the western boundary of allowance for road, and in another conveyance made in 1853, they mention in the description a street running south along said lot. Subsequent conveyances of the same land prior to 1857 also recognized the allowance for a road : — Held, Idington, J., dissenting, that the said conveyances were acts of dedication of the street as a public highway. — The first deed executed by the Hospital Trustees, and a plan produced at the hearing, shewed that the street extended across the railway track and down to the River Don, but at the time the portion between the track and the river was a marsh. — ^Evidence was given of use by the public of the street down to the edge of 401 DEED. 402 the marsh : — Held, Idington, J., dissenting, that the use of such portion was applicable to the whole dedicated road down to the river, and the evidence of user was sufficient to shew an acceptance by the public of the highway. Grand Trunk Railway Company V. City of Toronto, xxxvii., 210. 2. Highway — Road allowance — Reserva- tions in township survey — General instruc- tions — Model plan — Evidence, xxxiv., 513. See Evidence. 3. Negligence — Electric lighting — Wires on public highioay — Proximity to iridge — Injury to child, xxxviii., 27. See Negligence. 4. Title to land — Public highway — Expro- priation — Presumption — User, Cam. Cas. 53. See Highway. 5. Dedication of highways-Conditions in Grown grant — Access to beach — Plan of sub- division — Destination by owner — Limitation of user — Long usage by public — Acquisitive prescription — Recitals in deeds — Cadastral plans, references and ■ notices — Evidence — Presumptions, xli., 264. See Highway. 6. Railways — Jurisdiction 'Of Board of Railway Commissioners — Highway — User — "Public way or means of communication" — Access to harbour — Deviation of tracks — Navigable waters — Construction of statute —R. S. C. 1906, c. 37, ss. 2 (11), 3, 2S7, 238, 2J,1. G. T. R. v. Toronto, xlii., 613. See Railways. 7. Trespass — Easement — ■ Public way — User — Prescription — Estoppel — " Law and Transfer of Property Act," R. S. 0. 1897, c. 119. Peters v. Sinclair, xlviii., 57. See Easement. 8. Trespass — Easement — Public way — User — Prescription — Estoppel — "Law and Transfer of Property Act," R. S. O. 1897, c. 119, xlviii., 57. See Highway. 9. Dedication of lands for highway — Opening of street — Construction of agree- ment, xlix., 621. ' See Municipal Corporation. 10. Highways — Old trail's of Rupert's Land -■ — Survey — Width of highway — Con- struction of statute — "North-West Terri- tories Act," s. lOS — Transfer of highioay — Plans — Registration — Estoppel — Expendi- ture of public funds. Rowland v. Gity of Edmonton, 1., 520. See Highway. DEED. 1. Construction, 1-9. 2. Description of Lands. 10-13. 3. Mistake, 14. 4. Other Cases, 15-45. 1. CONSJEUCTION. 1. Construction of deed — Ambiguity — Dis- charge of debtor — Contract — Illegal consid- eration — Right of action,] — Where the language of an instrument is ambiguous or obscure, the intention of the parties should be ascertained by consideration of the cir- cumstances attending the execution of the agreement. — A deed of settlement between B. and a bank declared that he owed the bank $4,731.61 for interest on an advance in respect to a lottery scheme and a further sum of $18,762.02 for advances on an ac- count for the purchase of stock, two notes being given for these amounts, respectively, •and the shares of stock being pledged as security for the large note only. Subse- quently, the directors of the bank passed a resolution authorizing the discharge of B., on payment of $15,000 by one V., " jusqu'd concurrence de la dite somme de $15,000," and the transfer of the shares to V. This resolution was followed by a deed of com- promise, V. paying the $15,000 and obtain- ing a transfer of the shares, and it was thereby declared that, by the transaction. B. was discharged in so far as concerned tliu bank's advances on the stock account " vis-d,-vis la banque des avanees qu'elle lui a faites du chef susdit mentionnies en un acte de reglement," etc.. the resolution being annexed and the deed of settlement referred to for imputation of the payment, and V. was to become creditor of B. under con- ditions mentioned, " jusqu'd, concurrence de $15,000," the note which had not become due and the securities being allowed to re- main in possession gf.the bank. In an ac- tion by D. to whom the notes held by the bank were assigned : — Held, reversing the judgment appealed from, that the effect of the deed of com'promise was to discharge B. merely to the extent of the $15,000 on ac- count of the larger note ; and further, af- firming the judgment appealed from, that no action could lie upon the smaller note as it represented interest on. a claim in relation to a contract of an illegal nature. , L' As- sociation St. Jean Baptiste v. Brault (30 S. 0. R. 598) followed. Deserres v. Brault. xxxviiJ, 613. ■ 2. Construction of deed — Description of lands — License to cut timber — Ambiguitas latens — Evidence — Boundary.'] — A license to cut timber on a lot of land described the portion affected as bounded on the south by a river. The river almost crossed the lot at a point near its northern boundary and, at another point, about nineteen arpents further south, it again crossed the lot, completely. In an action to eject the licensee from the portion of the lot between the first and second bends of the river and to recover damages : — Held, that, under the circum- stances, there was no ambiguity in the de- signation of the quantity of the land af- fected by the license and, in any event, the language of the instrument must be literally construed in favour of the grantee and the party bound thereby could not be permitted to shew a different intention by evidence of surrounding circumstances. Morel v. La- frnnrois, xxxviii., 75. 3. Construction of deed — Title to land—, Servitude — Acquiescence — Estoppel by con- 403 DEED. 404 duct — Actio negatoria sercitutis — Operation of waterworks. li ■ — ■ By a deed executed in 1879, C. granted to E. the right of building a reservoir in connection with a system of waterworks, laying pipes and taking water from a stream on his land, and in 1897, exe- cuted a deed of lease of the same land to him with the right, for the purposes of the waterworks established thereon, " de vaquer sur tout le terrain . . . et le droit d'y conduire des tuyaux, y faire des citernes et autres travaux en rapport au dit aqueduc^ et aux reparations d'icelui " : — Beld, that the deed executed in 1897 gave R. the right of bringing water from adjoining lands through pipes laid on the lands so leased. Cliche V. Roy, xxxix., 244. 4. Supply of electric light — Cancellation of contract — Condition for terminating ser- vice — Interest in premises ceasing — "Heirs" — "Assigns."] — The electric company and S. entered into an agreement for the supply of electric lighting in a hotel for ten years from 1st May, 1902, and it was provided that either party might cancel the agree- ment by notice in writing, if, after the ex- piration of five years, neither S. nor his heirs, executors, administrators or assigns should be owner, tenant, or occupier of the hotel, alone or with other persons. The lease to S. extended only until 1st May, 1907; it gave liim no right to a renewal, and he had no other interest in the building. He sold a half interest in the lease to two persons with whom he formed a partnership in the hotel business, which was carried on till 1904, when the partnership terminated by his death, and the defendants were appointed administrators of his intestate estate. The affairs of the partnership were settled be- tween the defendants and the surviving part- ners who became transferees of the business, exclusive owners of the lease and sole occu- pants of the hotel for the unexpired term. The defendants gave notice to the plaintiffs to cancel the agreement on 1st May, 1907, and, on that date, the surviving partners obtained a new lease of the premises under which they continued in occupation and pos- session : — Held, that, after 1st May, 1907, the new tenants of the hotel were not as- signs of S. and, consequently, the defend- ants were entitled to cancel the agreement for electric lighting by notice according to the proviso. Deschenes Electric Co. v. Royal Trust Co., xxxix., 567. 5. Title to land — Sale — Construction of deed — Reservation of growing timier — Rights of vendor and purchaser — Reso- lutive condition.] — A deed of sale of wild lands to be used for agricultural purposes, clearly expressed certain speci- fic reservations and contained, in addi- tion, a clause as follows : " Et de plus la prfisente vente est faite a la condition ex- presse que le dit acqu^reur n'aura pas le droit de couper, enlever ou charroyer aucun bois sur le terrain ei-dessus vendu autre- ment que pour son propre usage pour faire des batisses sur le terrain, des clStures, et du bois de chaufifage ; ,il est, en consequence, convenu que si TacquSreur coupait du bois en violation de la pr6sente clause, les ven- denrs auront droit de demander la rfeilia- tion des prfeentes et de reprendre possession des immeubles ci-dessus vendus sans rien payer a Tacqu^reur pour les ameliorations qa'il pourra avoir faites. Et tout bois coup6 en violation des prfisentes deviendra, aussitOt coupe, la propriSte des vendeurs, car tel est la convention expresse des parties et sans laquelle les prfisentes n'auraient pas eu lieu " : — Held, that, in the absence of any contrary intention expressed in the deed, the title to the lot of land sold passed absolutely to the purchaser with the excep- tion of the special reservation. — Held, also, that the clause in question had not the effect of reserving to the vendors all the timber standing upon the land sold, nor can it be construed as giving them the right (without rescission upon breach of the reso- lutive condition) to re-enter on said land for the purpose of removing stumps or second growth timber. Rioux v. St. Law- rence Terminal Co., xl., 98. 6. Title to land — Construction of deed — Easement appurtenant — Use of common lane — Overhanging fire-escape — Encroach- ment on space over lane — Trespass — Right of action.] — 'A grant of the right to use a lane in rear of city lots " in common wifli others," as an easement appurtenant to the lots conveyed, entitles the purchaser to make any reasonable use, consistent with the common user, not only of the surface but also of the space over the lane. The construction of a fire-escape three feet wide with its lower end 17 feet above the ground (in compliance with municipal regulations), is not an unreasonable use nor inconsistent with the use of the lane in common by others; consequently its removal should not be decreed at the suit of the owner of the land across which the lane has been opened. — Judgment appealed from affirmed, Maclen- nan, J., dissenting. Meighen v. Paicaud, xl, 188. 7. Mining regulations — Hydraulic lease- Breach of conditions — Construction of deed — Forfeiture — Right of lessees — Procedttre on inquiry — Judicial duties of arbiter.] — Under a condition for defeasance in a lease of a mining location, made by the Crown in virtue of the hydraulic mining regulations of 3rd December, 1898, a provision that the Jlinister of the Interior is to be the " sole and final judge " of the fact of default by the lessee does not entitle the Crown to cancel the lease and re-enter until the fact of such default has been determined by the Minister in the exercise of the functions vested in him after an inquiry of a judicial nature in which an opportunity has been afforded to all parties interested of know- ing and being heard in respect to the mat- ters alleged against them in such investi- gation.^-Quwre, per Idington, J. — Was there not sufficient evidence in the case to shew that there had been no such breach of the conditions as could, work a forfeiture of the lease? (I/eave to appeal to Privy Council was refused, 18th July, 190») Bonanza Creek Hydraulic Concession v. The King, xl., 281. 8. Mining regulations — Hydraulic l^^f". Breach of conditions — Construction of Seed — Forfeiture — Right of lessees — Procedure on inquiry — Judicial duties of arliter.]— 405 DEED. 406 Under circumstances similar to those in- volved on the appeal in the case of The Bonanza Creek Hydraulic Concessions v. The King (40 Can. S. C. R. 281) this ap- peal was aiowed with costs for the reason that there could be no right of cancellation of the lease or re-entry by the Crown until default by the lessees had been established upon an investigation of a judicial nature by the Minister of the Interior in the exer- cise of the functions vested in him by the hydraulic regulations and the term of the lease. — Per Idington, J., — ^The facts dis- closed by the evidence could not justify the cancellation of the lease or re-entry for breach of the conditions thereof. (Leave to appeal to Privy Council was refused, 18th July, 1908.) Klondyke Oovernment Conces- sion v. The King, xl., 294. 9. Servitude — Construction of deed — Pur- chase of dominant and servient tenements — Unity of ovmership — Extinction of servitude — Revival hy sale of dominant tenement — Effect of sheriff's sale — Purgation of ap- parent servitude — Reference to former deed creating charge — Lost deed — Evidence.^ — • By the judgment appealed from (Q. R. 18 K. B. 24), reversing the judgment of the Superior Court (Q. R. 32 S. C. 289), it was held that (1) Where the purchaser of two parcels of land upon one of which there existed a servitude for the benefit of the other, that was extinguished by the unity of ownership thus restored, executes a deed of sale of the former, subject to the servitude as constituted by the original title deed to which it made reference, such deed of sale in turn becomes a title which revives the servitude ; (2) The situation of a servitude giving a right of passage, which has not been defined in the title by which it was created, is sufiiciently determined by the description given of its position, accompanied by a plan, in a deed of compromise between the own- ers of the two parcels of land submitting their differences in regard to the servitude to the decision of an arbitrator; (3) Both before and since the promulgation of the Civil Code, apparent servitudes are not purged by adjudication on a sale by the sheriff under a writ of execution. — On ap- peal to the Supreme Court of Canada the judgment appealed from was affirmed. Thompson v. Simard, xli., 217. 2. Description of Lands. 10. Title to land — Amhiguous description of grantee — "Oreek Catholic Church " — Evi- dence — Construction of deed — Reversal of concurrent findings.] — Where Crown lands were granted " in trust for the purposes of the congregation of the Greek Catholic Church at Limestone Lake," N.W.T., and it appeared that this description was ambigu- ous and might mean either the Greek Or- thodox Church or the. Greek Church in com- munion with the Church of Rome, it was held that the construction of the grant should be determined by the facts and cir- cumstances antecedent to and attending the issue of the grant and that, in view of the evidence adduced, the words did not mean a church united with the Roman Catholic Church and subject to the jurisdiction of the Pope. Judgment appealed from re- versed, the Chief Justice and Girouard, J., dissenting, on the ground that the concur- rent findings of the courts below upon mat- ters of fact ought not to be disturbed. (Ap- peal to Privy Council dismissed, [1908] A. C. 65.) Polushie v. Zacklynski, xxxvii., 177. 11. Highway — Dedication — • Acceptance by public — Vesr.'i — ^An action was brought by the City of Toronto against the G. T. Ry. Co., to determine whether or not a street crossed by the railway was a public high- way prior to 1857, when the company ob- tained its right of way. It appeared on the hearing that, in 1850, the Trustees of the General Hospital conveyed land adjoining the street describing it in the deed as the western boundary of allowance for road, and in another conveyance, made in 1853, they mentioned in the description a street run- ning south along said lot. Subsequent con- veyances of the same land prior to 1857 also recognized the allowance for a road : — Held, Idington, J., dissenting, that the said con- veyances were acts of dedication of the street as a public highway. — ^The first deed executed by the Hospital Trustees, and a plan produced at the hearing, shewed that the street extended across the railway track and down to the River Don, but at the time the portion between the track and the river was a marsh. Evidence was given of use by the public of the street down to the edge of the marsh. — Held, Idington, J., dissent- ing, that the use of such portion was applic- able to the whole dedicated road down to the river, and the evidence of user was sufficient to shew an acceptance by the pub- lic of the highway. Grand Trunk Rway Co. V. City of Toronto, xxxvii., 210. 12. Deed of land — Description — Ambiguity — Admissions.]- — In an action for trespass to land, both parties claimed title from the same source, and the dispute was as to which title included the locus. The deed under which S. claimed contained the fol- lowing as part of the description : " Then running in an eastwardly direction along the said highway until it comes to a cross- way in the public highway and running in a southerly direction until it comes to the waters of Broad Cove." There were two crossways in the highway and S. contended that the first one reached on the course was indicated and R. that it was the second lying a little farther west. — Ifeld, reversing the judgment of the Supreme Court of Nova Scotia (44 N. S. Rep. 332), Idington and Duff, JJ., dissenting, that to run the course to the first crossway would take it over land not owned by the grantor : that there were other difficulties in the way of taking that course; that S. had apparently for many years treated the second crossway a? the boundary ; and what evidence there was favoured that view. The construction should, therefore, be that the crossway men- tioned in the description was the second of the two. Reddy v. Strople, xliv., 246. 13. Land reservation — Easement ■ — Right of passage — ■ — Changed conditions — Title to lands — Object of conveyance.] — F. 407 DEED. 40« sold land to the Cement Co., reserving by the deed " the right to pass over for cattle, etc., for water going to and from Dry Lake." The company, in using the land for exca- vating the marl deposit, cut away the shelving bank of Dry Lake and rendered it inaccessible for cattle. — Held, Fitzpatrick, O.J., dissenting, that cutting away the bank at this place without providing another suit- able watering-place with a proper way lead- ing thereto was an unwarranted interfer- ence with the rights of F., and the fact that the company purchased the land for the purpose of digging marl did not give them a right to extinguish F.'s easement of pas- sage for his cattle. Canada Cement Co. v. Fitzgerald, liii., 263. 3. Mistake. .14, Atireement for delivery of bonds^Mis- talre.l — ^In an action by a trust corporation against a railway company a reference was mfide to the master to decide the ownership of certain bonds of which Blake, one of the defendants, had becom'e purchaser at a judicial sale in the course of litigation be- tween the appellants and the respondent. They had executed an agreement providing that, on payment of $5,000, the price of adjudication, and a judgment for $67,000 against Ritchie, the bonds should be trans- ferred to him. Ritchie contended that only $5,000 was to be paid, and that after he had signed the agreement he discovered the mistake in its provision for payment of the larger sums. The master decided that Ritchie was' entitled to the bonds upon pay- ment of the smaller sum. His ruling was reversed by Meredith, C.J., but was restored by the judgment of the Court of Appeal : — Held, reversing the judgment appealed from, that upon a correct view of the evidence, the judgment of Meredith, C.J., was right and should be restored. (Leave to appeal to Privy Council refused with costs ; 18th July, 1907.) ' Burke v. Ritchie, Cout. Cas. .865. 4. Othek Cases. 15. Rideau canal lands — Condition subse- quent — Mis-user by Crown — Forfeiture. Wright v. The Queen, Gout. Cas. 151. 16. Construction of deed — Mortgage or sale — Equity of redemption. McLean v. Mc- Kay, Cout. Cas. 334. 17. Conveyance of land — Description^ of property — Partition — Petitory action — Parties interested in litigation -z— lAtigious rights — Facte rde quo^d- litis — Illegal consid- eration — Specific performance^ — Retrait suc- cessoral — Pleading, xxxiv., 24. See Champerty. , See Title to Land. 18. Title to land — Chant from Crown — Description — Navigable or floatable waters — Inlet of navigable river — Implied reserva- tions — Grown domain — Public law — Con- struction of deed — Evidence — Estoppel — Waiver, xxxiv., 603. See Title to Land. 19. Mistake — Misrepresentations — ■ Lay agreement — Mortgage — Execution of docu- ments by illiterate persons — Evidence, xxxv. 110. See Contract. 20. Construction of contract — Custom of trade— Arts. 8, 1016 G. C, xxxv., 274. See Contract. 21. Agreem,ent of the sale of land — Falsa demonstraiio — ■ Position of vendor's signa- ture — Specific performance, xxxv., 282. See Specitic Performance. 22. Description in Grown grant — Mining lease — Evidence-^Certifled copy-^Plan of survey, xxxv., 527. See Evidence. 23. Assessment and taxation — Constitu- tional law — -Exemptions from taxation — Land subsidies of the Canadian Pacific Rail- way — -Extension of boundaries of Manitoia — 'Construction of statutes in respect to the constitution of Canada, Manitoba and the North-West Territories — Construction of contract — Chant in prcesenti — Cause of uc- tion — Jurisdiction — Waiver, xxxv., 550. See Assessment and Taxes. 24. Composition and discharge — Construc- tion of deed — Novation — Reservation of col- lateral security — Delivering up evidence of debt, xxxvi., 18. See Debtor and Creditor. 25. Title to land — Conveyance in fee — Reservation of life estate - — Possession — Ejectment, xxxvi., 231. See Title to Land. 26. Pleading — Cross-demand — -Compen- sations-Arts. S, Z03, 215, 217 C. P. Q.— Practice — Damages — Construction of con- tract — Liquidated, damages — Penal clause — Arts. 1076, 1187, 1183 G. C— Estoppel- Waiver, xxxvi., 347. See Contract. 27. Limitation of actions — Unregistered deed — Subsequent registered mortgage — Poi- session — Right of entry, xxxvi., 455. See Limitation op Actions. 28. Title to land — Servitude — Gonstrm- tion of deed — Reservations — "Representik tives " — Otvners par individis — Common lanes — Right of passage — Private wall — Windows and openings in line of lane — Arts. 5SS-53S C. 0., xxxvi., 618. See Servitude. 29. Dominion mining regulations — Bv- draulic mining — Placer mining — ■. Lease- Water grants— Conditions of grant-^-Vser of floieing waters — Diversion of watercourse- Dams and flumes — Construction of •deed— Riparian rights — Priority of right--In}Wie- tion, xxxviii.; 79. ' See Mines and Mining. 409 DELIVBEY. 410 ZO.-Mortgage — Money advanced to con- struot buildings — Lden for materials sup- plied — Payment to contractor — Transac- tions in fraud of mortgagee's rights — Re- demption — 'Costs, xxxviii., 557. See MOETGAGE. 31. Title to land — Promise of sale — Entry in land register — Tenant by sufferance — Squatter's rights — Possession in good faith — Eviction — Tender of deed — Restric- tive conditions — Evidence — Commence- ment de preuve par 4crit ■ — Pleading and Practice— Arts. 411, JiU, J,n, 419, 1204, 1$33, 1476, 1418 C. C, xxxix., 47. See Action. See Title to Land. 32. Title to land — Interest in mining areas — Sale hy trustee — Recovery of proceeds of sale — Agreement in writing — Statute of Frauds— R. S. N. S. (1900) c. I4I, ss. 4 and 7 — Part performance — Acts referable to contract — Evidence — Pleading, xxxix., 608. See Title to Land. 33. Parent and child — Guardianship — Family arrangement — Public policy, xl., 115. See Pabent and Child. 34. Married woman — Separate property — Liability for debts of husband ■ — Registry law — "Real Property Act " — " Married Wo- men's Act " — Conveyance during coverture, xl., 384. See Makeied Women. 35. Construction of agreement — Sale of timber — Removal — Reasonable time, xl., 557. See Contbact. .36. Lessor and lessee — Covenant for re- newal — Option of lessor — Second term — Possession by lessee after expiration of term — Construction of deed — Specific perform^ ance, Cam. Cas. 486. See Lease. 37. Ships and shipping — Material used in construction — Sale of goods ■ — ■ Contract — Principal and agent — Misrepresentations — Mistake — Conversion — Trover — Evidence — Misdirection — • New trial — Ship's hus- band — Pledging credit of owners — Hfeces- sary outfitting at home port, Cout. Cas. 131. See Ships and Shipping. 38. Title to land — Lease for years — Pos- session by sub-tenant — Purchase at sheriff's sale — Adverse occupation — Evidence ■ — Conveyance of rights acquired — Compro- mise — Waivei — Estoppel, Cout. Cas. 158. See Title to Land. 39. Contract — Agreement for sale of land — Deferred conveyance — Default in payment — Rem,edy of vendor — Reading " or " as " and," xli., 607. See Contract. 40. Sale of land— Stipulation as to user — Covenant or condition — Detached dwelling house — Apartment house, I. See Sale of Land. 41. SoZe of land — Stipulation as to user — Covenant or condition, 1. See Sale op Land. 42. Sale of lands — Covenant — Simple contract — Specialty. Re Muir., li., 428. See Constitutional Law. 43. Saile of land — Contract for sale — Time of essence — Delay of vendor — Descrip- tion — Statute of Frauds — Specific perform- ance. Anderson v. Foster, xlii., 251. See Specific Peefobmance. 44. Company — Powers — SoZe of business premises — Seal — Agreement signed by officer. McKnight v. VaxtsicMer, li., 374. See Company, 1. 45. Assessment and taxation — Sale for delinquent taxes — Tax sale — Premature de- livery — Statutory authority — Condition precedent - — Evidence — Presumption ■ — Curative enactment — "Assessment Act," B. C. Con. Acts, 1888, c. II4, s. 92— B. G. "Assessment Act," 1903, S & 4 Edw. VII. c. 53, ss. 125, 153, 156^Certificate of title (B.C.). — Registry law, liii., 503. See Assessment and Taxation. DEFAMATION. Printing report of ghost haunting pre- mises — Slander of title — - Fair comment — Disparaging property — Special damages — Evidence — Presumption of malice — Right of action, xxxix., 340. See Slandee. DELAY. See Time. DELIT. 1. Malicious prosecution — Reasonable and probable cause — Bond fide belief in guilt — Burden of proof — Right of action — Dam- ages — Art. 1053 C. G. — Pleading and practice, xl., 128. See Malicious Prosecution. And see Negligence. 2. Municipal corporation — Contract with company — Franchise for water supply — Protection against fire — Negligence — Liaibil- ity of company to ratepayer — Damages. Belanger v. Mont. Water & Power Co., 1., 356. See Action, 4. DEMVERY. 1. Sale of goods — Construction of contract -Custom of trade — Evidence, xxxv., 274. See Contract. 411 DEKNIEE BQUIPEUE. 412 2. Sale of goods — Suspensive condition — Term of credit — Pledge — Shipping hills — Bills of lading — Indorsement of Mils— No- tice ■ — Fraudulent transfer — Insolvency — Banking — Bmlee receipt — Brokers and factors — Principal and agent — Resiliation of contract i — Revendication — Damages — Practice — Pleading, xxxvi., 406. See Sale. 3. Sale of goods — Contract by correspond- ence — -Statute of Frauds — Principal and agent — Statutory prohibition — Illicit sale of intoxicating liquors — Knowledge of seller — Validity of contract, xxxvii., 55. See CONTEACT. 4. Broker — Stock — Purchase on margin — Pledge of stock by broker — Possession for delivery to purchaser, xxxviii., 601. See Broker. 5. Construction of contract — Sale of ma- chinery — Agreement for^ lien — • Delivery, xxxix., 274. See Contract. 6. Sale of goods — Lien of unpaid vendor — Stoppage in transitu — Goods not separated from larger bulk — Estoppel, Cam. Cas. 511. See Sale. 7. Contract — Supplying electrical energy — Condition — Payment at flat rate — Obliga- tion to pay for pressure not utiliaed — Sale of commodity — Agreement for service. Mont- real V. Montreal lAght, Heat, &c., xlii., 431. See OONTEACT. 8. Contract — Sale — Payment in company stock — Unorganized company — • Time for delivery. Roche v. Johnson, liii., 18. See Contract. DEMURBEB. 1. Subaqueous mining — Grown grants — Dredging lease — Breach of contract — Subsequent issue of placer mining licenses — Damages — Pleading and practice — State- ment of claim — Demurrer — Cause of ac- tion.'] — A statement of claim whieh alleges that the Crown, after grantipg a lease of areas for subaqueous mining and while that lease was in force, in derogation of the rights of the lessee to peaceable enjoyment thereof, interfered with the rights vested in him transferring the leased, area to placer miners who were put in possession of them by the Crown to his detriment, dis- closes a sufficient cause of action in support of a petition of right for the recovery of damages claimed in consequence of such subsequent grants. — Judgment appealed from (10 Ex. C. R. 390) reserved, Davies and Idington, JJ., dissenting. — ^Davies, J., dissented on the ground that there was no sufficient allegation in the petition either of interference with the submerged beds or bars of the stream, which alone were in- cluded in the dredging lease, or of such ac- tive interference by the Crown as would justify an action. (Appeal to Privy Coun- cil dismissed with costs ; 10th July, 1908.) McLean v. The King, xxxviii., 542. 2. Appeal — Jurisdiction — Supreme Court Act (1875), S8 Vict. c. 11— Demurrer — Final judgment — Costs.'] — On appeal from a judgment overruling a demurrer (12 N. S. Rep. 376; Russ. Eq. Dec. 287) ; — Held, per Fournier, Taschereau and (Jwynne, JJ. (the Chief Justice and Strong, J., contra), that, under the circumstances, the judgment appealed did not dispose of the matters in controversy finally, and the appeal was quashed for want of jurisdiction under the Supreme Court Act of 1875, with costs of a motion to quash. (Cf. 7 App. Cas. 178). Western Counties Railway Go. v. 'Windsor and Annapolis Railway Co., Cout. Cas. 11. 3. Appeal from Exchequer Court — Judg- ment on demurrer — Decision upon issues — Jurisdiction, xxxvi., 593. See Appeal. 4. Appeal — Final judgment — -Jurisdiction, xl., 139. See Judgment. 5. Action in rem — Pleading — Abate- ment of contract price— Mortgage on ship — Damages, xl., 418. See Admibaltt Law. DEPOSIT. 1. Succession duties — New Brunswick statute — Foreign bank — Special deposit in local branch — Depositor domiciled in Nova Scotia ■ — Debt due by bank — Notice of withdrawal — Enforcement of payment. Lovitt V. The King, xliii., 106. See Succession Duty. 2. Vendor and purchaser — Sale of land — Payment by instalments — Specified dates — Time of essence — Forfeiture — Penalty — Payment declared to be deposit, xlix., 360. See Vendor and Purchaser. DERNIER EQUIPEUB. Shipping — ■ Material men — Supplies furnished for " last voyage " — Privilege of dernier 6quipeur — Round voyage — Charter- party — Personal debts of hirers — Seizure of ship— Arts. 2383, 2391 C. C.—Art. 931 G. P. Q. — Construction of statute — Ordon- nances de la Marine, 1681.1 — A steamship lying at the port of Liverpool was chartered by the owners to P. for six months, for voyages between certain European ports and Canada, the hirers to bear all expenses of navigation and upkeep until she was returned to the owners. The ship was de- livered to the hirers at Rotterdam where she took on cargo and sailed for Montreal. On arriving at Montreal she unloaded aad re-loaded for a voyage to Rotterdam, with the intention of returning to Montreal, and obtained a supply of coal from the plam- titfs which was furnishied on the order of the hirers' agent at Montreal. The ship 413 DISCRETIO^i". 41-t sailed to Rotterdam and returned to Mont- real in about a month, touching at Havre and Quebec, discharged her cargo and pro- ceeded to replead, obtaining another supply of coal from the plaintifEs in the same man- ner as the first supply had been furnished. Within a few days, the price of these sup- plies of coal being still owing and unpaid, the hirers became insolvent, and the plain- tiffs arrested the ship at Montreal, claiming special privilege upon her as derniers 4qui- peurs in furnishing the first supply of coal on her last round voyage, the right of at- tachment before judgment in respect of both supplies, and seizing her under the provi- sions of arts. 2391 of the Civil Code and 931 of the Code of Civil Procedure. — Held, per Pitzpatrick, C.J., and Davies, Maclen- nan and EKifE, JJ., that the voyage from Montreal to Rotterdam and return was not the ship's " last voyage " within the mean- ing of art. 2383 (5) of the Civil Code; that the voyage out from Montreal and that re- turning from Rotterdam did, not constitute one round voyage but were separate and complete voyages, and that, consequently, there was no privilege upon the ship for the supply of coal furnished for her voyage from Montreal to Rotterdam. And also, that the provisions of art. 3391 of the Civil Code did not render the ship liable to sei- zure for personal debts of the hirers, and consequently, that she could not be attached therefor by saisie-arrM. — Judgment appealed from (Q. R. 16 K. B. 16) aflarmed, Girou- ard, J., dissenting. — iPer Davies, J. — The " last voyage " mentioned in art. 2383 C. C. refers only to a voyage ending in the Pro- vince of Quebec. — Per Idington, J. — As the terms of the charter-party expressly ex- cluded authority in the hirers to bind the ship for any expenses of supply, and as nothing arose later that could by any im- plication of law confer any such authority on anyone and especially so in a port where the owners had their own agents, any pos- si'ble rights that might in a proper ease arise under art. 2383 of the Civil Code did not arise here ; and, therefore, though agreeing in the result he expressed no opinion on the meaning of the term " last voyage " therein. Lloyd v. Gtiibert (L. R. 1 Q. B. 115) should govern this case. Inverness Ry. and Coal Co. v. Jones et al., xl., 45. 4. Crown lands — Mining lease — Tres- pass — Conversion — Title to land — Evi- dence — Description in grant — Plan of survey — Certified copy, xxxv., 527. See Evidence. 5. Construction of statute — Toll-bridge — Franchise — Exclusive limits — Measure- ment of distance — Encroachment — 5S Geo. III. c. 20 (L. C), xxxvi., 224. See Statute. 6. Chattel mortgage ■ — ■ Renewal ■ — Time for filing — Identification of goods — Suffici- ency of description — Proof of judgment and execution, Cam. Cas. 436. See Chattel Mortgage. 7. Construction of will — Usufruct — Sub- stitution — Partition between institutes — Validating legislation — 60 Vict. c. 95 (Q.) — Construction of statute — Restraint of alienation — Interest of substitutes — Devise of property held by institute under parti- tion — Devolution of corpus of estate en na- ture — Accretion — Res judicata — Arts. S5S, 948 G. C, xxxviii., 1. See Will. DEVOLUTION OF ESTATES. 1. Doweress — Title to land — Prescrip- tion — ■ Statute of limitations — Heirs at law — Parol evidence — Will — Residuary devise, Cam. Cas. 338. See Title to Land. 2. Construction of will — 8ub.stitution — Trust — Death of greve — Accretion — Parti- tion — Apportionment in aliquot shares — ■ Distribution of estate — Partial intestacy, .dvii., 42. See Will. 3. Escheat — Dominion or provincial land — 5 Geo. V. {Alta.). Trusts d Guarantee Co. V. The King, liv., 107. See Constitutional Law. DESCRIPTION. DILATORY EXCEPTION. See Exception. 1. Mines and mining — Removal of ore — Boundary — Copy of plan — Evidence — Falsa demonstratio. Nova Scotia Steel Go. v. Bartlett, Cout. Cas. 268. 2. Title to lands — Grant from Crown — Navigable or floatable waters — Inlet of navigable river — Implied reservations — • Grown domain — Public laiv — Construction of deed — -Evidence -r— Estoppel — Waiver, xxxiv., 603. See Title to Lands. 3. Agreement of the sale of land — Falsa demonstratio — Position of vendor's signa- ture — Specific performance, xxxv., 282. See Specific Peefobmance. DIRECTORS. Trust — Company law — Extra remun- eration — Ultra vires act of directors — Ratification — Recovery of moneys illegally paid- — Mistake of law, xxxix., 614. See Company. DISCRETION. Leave to appeal — "Supreme Court Act," R. S. G. [1906] c. 1S9, s. 37. See Appeax. 415 DONATION 416 DISTRIBUTION AND OOI^LOCATION Liquidation of insolvent corporation — Distrihution and collocation — Privileged claim — Expenses for preservation of estate — Fire insurance premiums — Practice — Ess parte inscription — Notice- — Arts. 371, 373, 419, 1043-1046, 1201, 1994, 1996, ZOOl, 2009 C. C, xxiix., 318. See CoMPANT. DIVORCE. Husiand and loife — Institution of action hy divorced wife — Judicial authorization — Arts. 176, 178 C. C. — Art. U G. G. P. — Divorce — Decree ty foreign tribunal — Jur- isdiction — Effect in Queiec — Comity of nations.] — S. and F., both being domiciled in the State of New York, were married there in 1871 without ante-nuptial con- tract. Shortly after the marriage, F. re- ceived his wife's fortune from her trustees. Subsequently P. established a business in the city of Montreal and resided there when the action was instituted. S. followed her husband to Canada but only resided there a short time. In 1876 S. was granted a decree of divorce from F. by the Supreme Court of New York and, in 1881, brought this action for an account of his administration and management of her property, but without obtaining the authorization of a judge as provided by art. 178 of the Civil Code. The defence was that the divorce obtained in the United States was invalid in the Pro- vince of Quebec, and secondly that S. was not authorized to institute the action. The Superior Court overruled the pleas and held that the divorce alleged in the declara- tion was good and valid in the Province of Quebec (5 Leg. News 79) , but the Court of Queen's Bench reversed this judgment on the ground that the alleged divorce had no force in the Province of Quebec and that, consequently, S. being still the wife of F. could not institute her proceedings without marital or judicial authorization (6 Leg. News 329). On appeal to the Supreme Court of Canada: — Held (Strong, J., dis- senting), per Ritchie, C.J., and Henry and Gwynne, JJ., that S. having obtained with- out fraud or collusion a decree for divorce from the Supreme Court of New York, this decree, upon the principle of the comity of nations, should be recognized as valid in the courts of the provinces of Canada. — Per Ritchie, C.J., and Henry and Gwynne, JJ., that F. having submitted to the jurisdiction of the Supreme Court of New York when served with the proceedings in the action, could not now be allowed to affirm that that court had no jurisdiction. — Per Fournier, Henry and Gwynne, JJ. — The fact being established that In the State of New York, where the parties were married, S. could have sued her husband without previous authorization, art. 14 C. C. P., which gives to all persons having the right to sue in their own country the like power in the Province of Quebec, had the efiEect of cloth- ing the plaintiff with the same right to sue as a feme sole in the Province of Quebec as she had in her own country, notwithstand- ing the provisions for authorization con- tained in arts. 176 and 178 C. C. Stevens V. FisJc. (Cout. Dig. 874 ; 8 Legal News 42, 53) ; Cam. Cas. 592. DOMICILE. 1. Succession duties — New Brunswick statute — Foreign bank — Special deposit in local branch — Depositor domiciled in Nova Sootia — Debt due by bank— Notice of with- drawal — Enforcement of payment — Duties.] — L., whose domicile was in Nova Scotia, had, when he died, $90,000 on deposit in the branch of the Bank of British North America, at St. John, N.B. The receipt given him when the deposit was made pro- vided that the amount would be accounted for by \he Bank of British North America on surrender of the receipt and would beer interest at the rate of 3 per cent, per an; num. Fifteen days' notice was to be given of its withdrawal. L.'s executors, on de- mand of the manager at St. John, took out ancillary probate of his will in that city, and were paid the money. The Govern- ment of New Brunswick claimed succes- sion duty on the amount. — Held, reversing the judgment of the Supreme Court of New Brunswick (37 N. B. Rep. 558), Idington and Duff, JJ., dissenting, that the Govern- ment was not entitled to such duty. — Held, per Davies and Anglin, JJ., that notice of withdrawal could be given and payment en- forced at the head office of the bank in Lon- don, England, and perhaps at the branch in Montreal, the chief office of the bank in Canada. — Attorney-General of Ontario v. Newman (31 O. R. 340. 1 Ont. L. R. 511), questioned. Lovitt v. The King, xliii., 106. 2. Gonstitutional law — Gonstr-uction of statute — Legislative jurisdiction — " Direct tarnation within the province " — Succes- sion duty — Extra-territorial movables — Decedent domiciled within province, xlv., 469. See CoNSTiTUTiONAi. Law. DOMINION ARBITRATORS. Gonstitutional law — Liability of pro- vinces ai. confederation — Special funds — Rate of interest — • Trust funds of debt — Award of 1870— B. N. A. Act, 1867, as. Ill and IJ/S, xxxix.. 14. See CoNSTiTUTioNAX Law. DOMINION I.ANDS. See Crown ; Mines and Mining; Rivers AND Streams. DONATION. 1. Executor and trustee — Moneys of tes- tator — Deposit in bank — Authority to draw against— Gift.]— D. deposited money in bank m the jojnt names of himself and a 417 DUTIES. 418 daughter with power in either to draw against it. The daughter never exercised this power and when D. died she and her co-executor of his will, in applying for pro- bate, included said money in their state- ment of the property of the testator : — Held, that the money in bank remained the property of D. and did not pass to the daughter on his death. Be Daly; Daly v. Brown, xxxix., 122. And see Exeoutoks and Administbatoks. And see Gift. 2. Donatio inter vivos — Ante-nuptial con- tract — Gift to wife — Payment at death of husband — Institution contractuelle — Oner- ous gift.} — ^An ante-nuptial contract pro- vided that " in the future view of the said intended marriage he, the said Edward O'Reilly, for and in consideration of the love and affection and esteem which he hath for and beareth to the said Miss Eliza Petrie, hath given, granted and confirmed and by these presents doth give, grant and confirm unto the said Miss Eliza I'etrie, accepting hereof . . . the sum of twenty-five thousand dollars, currency of Canada, pay- able unto the said Miss Eliza Petrie by the heirs, executors, administrators or assigns of him the said Edward O'Reilly, the pay- ment whereof shall become due and de- mandable after the death of him the said Edward O'Reilly." The parties were mar- ried and on the death of the said O'Reilly his wife claimed the right to rank ou his estate as a creditor for the said sum of $25,000, which claim was contested by the general body of creditors who had all be- come such after said contract was made. — Held, affirming the judgment of the Court of Appeal (21 Ont. L. R. 201) that this clause in the contract must be construed as a donatio inter vivos creating a present debt in favour of the future wife, payment of which was deferred ; that, in the absence of proof of fraud, such a contract could not be attacked by subsequent creditors ; and that the wife was entitled to rank on the estate for the amount of said gift. — Seld, per Girouard, J., that the donation was one " a titre onireusB." Garland, Son & Co. v. O'Reilly, xliv., 197. DOWER. Doweress — Title to land — Prescription — Statute of Limitations — Heirs at law — Parol evidence — Will — Residuary devise. Cam. Gas. 338. See Title to Land. Jurisdiction of Marsh Commissioners — Assessment of lands — Certiorari — Limita- tion for granting writ — Practice — Expira- tion of time limit — Delays occasioned J>y judge — Legal maxim — • Order nunc pro tunc, xxxvii., 79. See Cebtiobabi. 3. Municipal corporation — Construction of sewers — Nuisance — ■ Injunction — Dam- ages — Bight of action — Practice, Cout. Cas. 162. See Appeal. 4. Municipal drainage — Capacity of city sewers — Negligence — Vis major, xli., 190. See Municipal Cokporation. SBEDGINO. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — Sub- sequent issue of placer mining licenses — Damages ■ — Plectding and practice — State- ment of claim — Cause of action, xxxviii., .^42. See Mines and Mining. DROITS DU VOISINAGE. See Nuisance. DURESS. 1. Will — Testamentary capacity — Evi- dence — Art. 8S1 C. G. — Marriage contract, XXXV., 477. See Maeeiage Contract. See Will. 2. Revocation of will — Testamentary ca- pacity — Findings of fact — Practice — Im- proper suggestion — Undue Influence — Cap- tation — Bounty taken by promoter ■ — Fraudulent representations — Evidence — Onus of proof, xxxviii., 460. See Will. 3. Will — Testa-mentary capacity — Cap- tation — Suggestion — Undue influence — Interdiction — Evidence — Onus of proof, xli., 391. See Will. DUTIES. DRAINAGE. 1. Actio negatoria servitutis ■ — Boundary — Estoppel — Waiver of objections — Evi- dence. Breton v. Gonthier dit Bernard, Cout. Cas. 350. 2. Construction of statute — " Marsh Act," R. S. N. S. 1900, c. 66, ss. S2, 66— 1. Appeal — Jurisdiction — Supreme Court Act — Duty or fee — Interest in land — Fu- ture rights, xli., 35. See Appeal. 2. Succession duties — • New Brunswick statute — Foreign bank — Special deposit in local branch — Depositor domiciled in Nova Scotia — Debt due by bank — Notice of with- s.c.D. — 14 419 EASEMBXT. 430 drawal — Enforcement of payment — Domi- cile, xliii., 106. See Succession Duties. 3. Constitutional law — Gonstruotion of statute — Legislative jurisdiction — " Direct taxation within the province " — Succession duty — Extra-territorial movables — Decedent domiciled mthin province, xlv., 469. See Constitutional Law. EASEMENT. 1. Title to land — Easement appurtenant — User of lane — Prescription — Agreement for right of way — Construction of contract — Practice.^- — In 1860 J. D. conveyed to J. D. the younger (the plaintiff) the east half of lot 19 in the 5th concession west of Yonge street in the townsiip of York " to- gether with all and singular . . . ways . . . easements . . . and appurte- nances whatsoever in the said land . . . belonging or in any wise appertaining or therewith used and enjoyed, etc." Lots 19 and 18 were contiguous lots of which 18 lay to the south of 19, and both lots were bounded on the east by the 5th concession road and on the west by the 6th concession road. At the time ceding, the occupants of the east half of lot 19 were accustomed to drive to the 6th concession road across the west half of lot 18, and, by his .statement of claim, the plaintiff claimed a right of way as an easement over the west half of 18 by reason of the conveyance from his father and twfenty-five years' user. J. D. died in 1877, and by his will devised to J. D. the younger the north-east quarter of lot 18, and to "W. D. (the grantor of the defendant) the residue of lot 18, and, by an agreement between J. D. (the plaintiff) and W. D., the latter conveyed to_ J. D. a right of way over a lane then existing upon the west half of lot 18, and over an extension to be made of said lane, so as to give him access to the 6th concession-road, in the following language i "Agree and permit the said J. D., his heirs, etc., a full and free right of way alone the lane where it now is on lot number 18. loading from the 6th line and extending 40 rods east from the centre of said lot, so as to allow a free communica- tion for all bis and their teams, etc." The lane on the west half of lot 18, if extended easterly in a straight line, would be upon the north-east quarter of lot 18, the lands devised to J. D., and one matter in dispute between the parties was whether or not a proper construction of the agreement re- quired that the extension of the lane should be by means of a jog continuing solely upon the land of W. D., or should be extended in a straight line upon the lands of J. D. Upon the trial before Gait, J., and a jury, a verdict was found that the plaintiff was entitled to the right of way over the west half of 18 to the 6th concession road by reason of grant and continuous user, and also that the extension of the lane should be wholly on the defendant's land. An order nisi to set aside the verdict and to enter a nonsuit or verdict for the defendant was made absolute by the Divisional Court, and judgment entered for the defendant. On appeal to the Court of Appeal this judg- ment was set aside and the judgment at the trial restored. On appeal to the Supreme Court of Canada : — Held, Ritchie, C.J., dis- senting, reversing the judgment of the Court of Appeal, that a way must be a defined way in order to pass by the general words " all ways used and enjoyed," when the way is not an existing easement or way of neces- sity ; and that in this case the way claimed as an easement was not a well defined, per- manent road or way, but simply a track in no settled or defined direction, and that all J. D. obtained from his father was a user purely of tolerance, under license and per- mission, and one which neither constituted an easement in fact at the time of the con- veyance, nor a user which, however long its continuance, would ripen into an easement by prescription. — Held, affirming the judg- ment of the Court of Appeal, that accord- ing to the true construction of the agree- ment between J. D. and W. D., the exten- sion of the lane was to be wholly upon the lands of W. D., and not in a straight line. — Held, that under Con. Rule 755, the court having all the material before it necessary for determining the «ase, and as no useful purpose would be served by send- ing the case back for a new trial, the court should give the final judgment in the action. — ^Rule 755 being a transcript of the Eng- lish Order 40, Rule 10 of 1875, and there being no rule in Ontario corresponding to Rule 568 of the English rules, which re- stricts the court to such inferences of fact as are not inconsistent with the findings of the jury, the observations of the Lord Chan- cellor in Toulndn v. Millar (13 App. Gas. 746), have no application. Rogers v. Dun- can (xviii., 710), Cam. Cas. 352. 2. Title to land — Construction of deed — Easement appurtenant — Vse of common lane — Overhanging fire-escape — Encroach- ment on space over lame — Trespass — Right of action.^ — A grant of the right to use a lane in rear of city lots " in common with others," as an easement appurtenant to the lots conveyed, entitles the purchaser to make any reasonable use, consistent with the common user, not only of the surface but also of the space over the lane. The construction of a fire-escape, three feet wide with its lower end 17 feet above the ground (in compliance with municipal re- gulations), is not an unreasonable use nor inconsistent with the use of the lane in common by others ; consequently, its re- moval should not be decreed at the suit of the owner of the land across which the lane has been opened. — Judgment appealed from affirmed, Maclennan J., dissenting. Meighen V. Paoaud, xl., 188. 8. Deed of land reservation — Right of passage — Changed conditions — Ohject of conveyance — Title to lands.]— 'F. sold lanil to the Cement Co., reserving by the deed " the right to pass over for cattle, etc., for water going to and from Dry Lake." — The company, in using the land for excavating the marl deposit, cut away the shelving bank of Dry Lake and rendered it inaccessible for cattle. — Held, Pitzpatrick, C.J., dissent- ing, that cutting away the bank at this 4ai ELECTION LAW. 432 place without providing another suitable watering-place with a proper way leading thereto was an unwarranted interference with the rights of F., and the fact that the company purchased the land for ,the pur- pose of digging marl did not give them a right to extinguish F.'s easement of passage for his cattle. Canada Cement Go. v. Fitz- gerald, liii., 263. 4. Private way — Unity of owv^rship — Subsequent severance — Revival of ease- ment — Reservation. AloClellan V. Powassan Lumber Co., xlii., 249. 5. Construction of deed — Title to land — Servitude — Acquiescence — Estoppel by conduct — Actio negatoria servitutis ■ — Operation of ivaierworks, xxxix., 244. See Deed. 6. Title to land — Room in building — Ad- verse possession — Statute of Limitations — Incidental rights — Implied grant — License or easement, xl., 313. See Title to Land. And see Seevitude. 7. Trespass — Public way — Dedication — User — • Prescription — - Estoppel — " Laio and Transfer of Property Act," R. S. 0. 1891, c. 119, xlviii., 57. See Highway. ECCLESIASTICAI. CORPORATION. Corporation sole — Roman Catholic Bishop — Devise of personal and ecclesiastical pro- perties — Construction of will, xxxiv., 419. See Will. EDUCATION. 1. Assessment and taxes — County School Fund — Contributions by incorporated towns — Construction of statute — 3 Edw. VII. u. 6, s. 7 {N. S.), xxxvii., 514. See Assessment and Taxes. 2. Legislative jurisdiction — Constitutional law — Company — Private bills— Questions referred for opinions — Construction of stat- ute, Cout. Cas. 1. See Legislation. 3. Leave to appeal — Municipal by-law — High School District — Public importance. In re Henderson and Township of West Missouri, xlvi., 627. 4. School boards — Assessment and taxa- tion — Taxes payable by incorporated com- panies — Apportionment — Shares for pub- lic and separate school purposes — Notice-^ Construction of statute — Legislative juris- diction—" B. N. A. Act, 1867," sec. 92— " SasTcatchewan Act," Jf & 5 Edw. VII. c. 42, s. i7—" School Assessment Act," R. S. Sask, 1909, c. 101, ss. 93, 93a., 1., 589. See Assessment and Taxation. EJECTMENT. 1. Crown lands — Adverse possession — Grant during — Information for intrusion — 21 Jac. I, c. U (Imp.), xxxiv., 533. See Crown Lands. 2. Title to land — Conveyance in fee — Re- servation of life estate — Possession — • xxxvi., 231. See Title to Land. ELECTION LAAV. 1. Agency, 1. 2. Appeal, 2-6. 3. Disqualification, 7. 4. Libel and Slandeb, 8. 5. Petition, 9-10. 6. Pbeliminaet Objections, 11-14. 7. Peoceduee, 15-20. 8. Teial, 21. 1. Agency. 1. Controverted election — Trial of peti- tion — Evidence — Corrupt acts at former election — Agency — System of corruption.] — A petition against the return of a mem- ber for the House of Commons at a general election in 1904 contained allegations of corrupt acts by respondent at the election in 1900 which were struck out on prelimin- iiry objections. On the trial of the petition evidence of payments by respondents of ac- counts in connection with the former elec- tion was offered to prove agency and a sys- tem and was admitted on the first ground. A question as to the amount of one account so paid was objected to and rejected : — - Held, that such rejection was proper ; that the question was not admissible to prove agency for agency was admitted or proved otherwise ; nor as proof of a system which could not be established by evidence of an isolated corrupt act. — Held, also, that where evidence is tendered on one ground other grounds cannot be set up in a Court of Appeal. Shelburne and Queen's Election Case, xxxvii., 604. 2. Appeal. 2. Controverted election — Appeal to Su- preme Court of Canada — Jurisdiction — Practice— 37 Vict. c. 19, ss. 35, 56 (D.), 38 Vict. c. 11, s. JiS (D.).}— Henry, J., held, in 1880, that the statute gave the appeal only upon fulfilment of the conditions pre- scribed, and, if security was not given within the prescribed time and the fee paid, no appeal would lie. In re John Stewart: The Kingston Election Case, Gout. Cas. 21. 3. Controverted election — Appeal — Fixing time for trial.] — No appeal lies to the Su- preme Court of Canada from an order of the judges assigned to try an election peti- tion fixing the date for such trial. Halifax Election Cases, xxxix., 401. 433 ELECTION LAW. 434 4. Appeal — Preliminary oijections — In- terlocutory motions — Construction of stat- ute — - " Dominion Controverted Elections Act," R. 8. 0. 1906, o. 7, s. 6^.]— Several of the preliminary objections to a petition against the election of a member of the House of Commons of Canada having re- mained undisposed of, on the day before the expiration of the six months limited for the commencement of the trial by section 39 of the " Dominion Controverted Elections Act," B. S. C. 1906, c. 7, the petitioner ap- plied to a judge, by motions, (a) to obtain an enlargement of the time for the com- mencement of the trial, and, (6) to have a day fixed for the hearing on such prelim- inary objections. On appeal from the judg- ment dismissing the , motions. — Held, that the judgment in question was not appeal- able to the Supreme Court of Canada un- der the provisions of section 64 of the " Do- minion Controverted Elections Act." L'As- somption Election Case (14 Can. S. C. R. 429) ; King's County Election Case (8 Can. S. C. E.. 192) ; Gloucester Election Case (8 Can. S. C. R. 204), and Ealifax Elec- tion Case (S9 Can. S. C. R. 401) referred to. Temiscouata Election, xlvii., 211. 5. Appeal — Jurisdiction — Provincial election — "Alljerta Controverted Elections Act " — Preliminary ohjections — " Judicial proceeding " — " Final judgment."'] — Held, per Davies, Idington and Anglin, J,T., that under the provisions of the " Alberta Con- troverted Elections Act " the judgment of the Supreme Court of the province in pro- ceedings to set aside an election to the legislature is final and no appeal lies there- from to the Supreme Court of Canada. — - Held, per Davies, Anglin and Brodeur, JJ., that the judgment of the Supreme Court of Alberta on appeal from- the decision of a judge on preliminary, objections filed under the " Controverted Elections Act " is not a " final judgment " from which an appeal lies to the Supreme Court of Canada. — Held, per Duff, J., that a proceeding under said Act to question the validity of an elec- tion is not a " judicial proceeding " within the contemplation of section 2 (e) of the "Supreme Court Act" in respect of which an appeal lies to the Supreme Court of Canada. Cross v. Carstairs, Edmonton Pro- vincial Election, xlvii., 559. 6. Controverted election — Secrecy of bal- lot — Act of D. R. O. — Numbering ballot.] — -Under the Dominion Controverted Elec- tions Act, a ballot cast at an election is avoif'ed if there are any marks thereon by which the voter may be identified, whether made by him or not. Hence, when the deputy returning officer in a polling district placed on each ballot the number corre- sponding to that opposite the elector's name on the voters' list, the ballots were properly rejected. Judgment appealed from (9 Ont. L. R. 201) aflirmed. Sedgewick and Iding- ton, JJ., dissenting. Wentworth Election Case, xxxvi., 497. port — Adjudication — Amendment — Evi-' dence.'i — On a charge of personal corruption by the respondent if the adjudication by the trial judges does not contain a formal find- ing of such corruption this court may insert it if the recitals and reasons given by the judges warrant it. — Respondent, the night before the election, took a sum of over $4,000 and divided it into several parcels of sums ranging from $250 to $1,500. He then, after midnight, visited all his commit- tee rooms, and gave to the chairman of each committee, personally and secretly, one of such parcels. His financial agent had no knowledge of this distribution and no evi- dence was produced of the application of the money to legitimate objects: — Held, that the inference was irresistible, that the money was intended for corruption of the electors and respondent was properly held guilty of personal corruption. — Allegations in the petition that respondent had himself given and procured, undertaken to give and procure money and value to electors and others named, his agents, to induce them to favour his election and vote for him, for the purpose of having such moneys and value employed in corrupt practice were sufficient to cover the offence of which the respondent was found guilty. St. Ann's Election Case, xxxvii., 563. 4. Libel and Slandek. 8. Libel — Withdrawal of candidate — Allegation of improper motives — Trial of action — Verdict for defendant — New trial. xliii. See Libel. 5. Petition. 9. Controverted election — Practice — Service of petition abroad — Subsequent ser- vice in Canada.] — Service of an election petition out of Canada being void, does not invalidate a subsequent legal service in Canada. Shelburne-Queen' s Election Case, xxxvi., 537. 10. Controverted election — Service of petition — Eastension of time — Substitu- tional service — R. S. C. [1906] c. 7, ss. 11 and 18.] — ^The provision in sec. 18, sub-sec. 2 of the Controverted Elections Act (R. S. C. [1906] c. 7), for substitutional service of an election petition where the respondent cannot be served personally is not exclusive, and an order for such service on the ground that prompt personal service could not be effected as in the case of a writ in civil mat- ters may be made under sec. 17. — The time for service may be extended, under the pro- visions of sec. 18, after the period limited by that section has expired. Oilbert v. The King (38 Can. S. C. R. 207) followed. Peterborough West Election Case, xli., 410. 3. Disqualification. 7. Controverted election — Personal cor- ruption — Charge in petition-fudge's re- 6. Preliminabt Objections. 11. Controverted election — - Preliminary objection — Status of petitioner — Corrupt 425 ELECTION LAW. '426 aots ■ — Evidence — Dominion Elections Act, 1900, s. JIS.]— Section 113 of the Do- minion Election Act, 1900) , provides that any person hiring a conveyance for a can- didate at an election, or his agent, for the purpose of conveying any voter to or from a polling place, shall, ipso facto, be disquali- fied from voting at such election : — Eeld, that the right of an elector to present a petition against the return of a candidate at an election may be questioned, by pre- liminary objection, on the ground that he is disqualified under the above section and that, on the hearing of the preliminary ob- jection, evidence may be given of the corrupt act which caused such disqualification. Beau- harnois Eleotion Case (31 Can. S. C. R. 447) distinguished. — Held, also, that though, unless the commission of the corrupt act charged is admitted, it must be judicially established, such admission or judicial de- termination does not take effect merely from the time at which it is made but relates back to the commission of the act. Gumherland Election Case; Pictou Election Case; North Cape Breton-Victoria Election Case, xxxvi., 542. 12. Controverted election — Petition — Pre- liminary ohjeotions — Status of petitioner — Evidence — Premature service — Return of memher.'i — On the hearing of prelimin- ary objections to an election petition the status of the petitioner may be established by oral evidence not objected to by the re- spondent.-^A petition alleging " an undue election " or " undue return " of a candidate at an election for the House of Commons cannot be presented and served before the candidate has been declared elected by the returning officer. Girouard and Idington, . JJ., dissented. Yukon Election Case, xxxvii., 495. 13. Election petition — Preliminary oh- jections — - Gross-petition — Sufficiency of charge of corrupt acts — Particulars.^ — By a preliminary objection to an election peti- tion it was claimed that the petitioner was not a person entitled to vote at the election and the next following objection charged that he had disqualified himself from voting by treating on polling day. — Held, that the second objection was not merely explanatory of the first but the two were separate and independent; that the second objection was properly dismissed as treating only disquali- fies a voter after conviction and not ipso facto; and that the first objection should not have been dismissed; the respondent to the petition being entitled to give evidence as to the status of the petitioner. — ^The re- spondent, by cross-petition, alleged that the defeated candidate personally and by agents " committed acts and the offence of undue influence." — Held, that it would have been desirable to state the facts relied on to establish the charge of undue influence, but ns these facts could be obtained by a de- mand for particulars a preliminary objec- tion was properly dismissed. Quehec West Election, xlii., 140. 14. Nomination — Irregularities — Omis- sion of additions — Identification of candi- date — Technical ohjeotions — Receipt for deposit — Validating effect — Evidence — Con- struction of statute — R. S. C. 1906, c. 6, "Dominion Elections Act" — R.S.C. 1906, c. 7, "Dominion Gontrorerted Elections Act."] — Per Fitzpatrick, C.J., and Davios, Anglin and Brodeur, JJ. — ^Technical objections to the form of nomination papers filed with the returning officer at an election of a mem- ber of the House of Commons, under the provisions of the " Dominion Elections Act," R. S. C. 1906, c. 6, should not be permitted to defeat the manifest purpose of the stat- ute. The omission in nomination papers to mention the residence, addition or descrip- tion oE the candidate proposed in such a manner as sufficiently to identify him con- .stitutes a patent and substantial failure to comply with the essential requirements of section 94 of the Act ; on the objection in this respect taken by the only opposing can- didate it is the duty of the returning officer to reject a nomination so irregularly made and to declare such opposing candidate elected by acclamation. iSuch rejection and declaration of election by acclamation may properly be made by the returning officer af- ter the expiration of the time limited for the nomination of candidates by s. 100 of the Act. — Per Fitzpatrick, C.J., and Davies, Anglin and Brodeur, JJ. (Idington, and Duff, JJ., contra). — The receipt for the re- quired deposit of $2(X), accompanying the nomination papers, given by the returning officer under the ' provisions of section 97 of the " Dominion Elections Act," is evidence merely of the production of the papers and payment of the deposit and not of the val- idity of the nomination. — Per Idington and Duff, JJ. (dissenting). — The receipt so given for the required deposit constitutes a legal assurance that the candidate has been duly and properly nominated ; it cannot be revoked nor the nomination papers rejected by the returning officer after the expiration of the time limited by section 100 of the Act for the nomination of candidates ; when that time has passed all questions touching the statutory sufficiency of the papers are concluded in so far as it is within the pro- vince of the returning officer to deal with such matters. — Per Duff, J. (dissenting). — Where the returning officer has received papers professing to nominate a proposed candidate with the consent of the candidate to such nomination and given his receipt for the required deposit pursuant to section 97 of the Act, and the time limited for the nomination of candidates at the election has expired, the status of such candidate becomes finally determined quoad proceedings under the control of the returning officer, and it is then the duty of that official to grant a poll for taking the votes of the electors. — Per Duff, J. (dissenting) . — In view of the lim- ited jurisdiction conferred upon judges in respect to election trials under the " Do- minion Controverted Elections Act." R. S. C. 1906. c. 7, where the returning officer has exceeded his legal powers by improperly re- turning a candidate as having been elected by acclamation the judgment should declare that the election was not according to law. — The judgment appealed from (Q. R. 42 S. C. 235) was affirmed, Idington and Duff, J.T., dissenting. Tico Mountains Election, xlvii., 185. 427 ELECTION LAW. 428 7. PBOCEDUEEi 15. Controverted election — Dismissal on default of appearance — Reinstating appeal — Practice.'] — When the case came on for hearing, no counsel appeared, and the ap- peal was dismissed with costs. A motion to reinstate the appeal and stay entry of judgment was dismissed, and a certificate of the judgment dismissing the appeal was transmitted to the Speaker of the House of Commons. Hargraft v. Gravely; West Northumlerland Election Case, Gout. Cas. 109. 16. Controverted election — • Abatement of appeal— Dissohition of Parliament — Return of deposit— Practice.] — When the appeal came on for hearing there had been a dis- solution of the Parliament in which the respondent had been returned as elected. It was declared that the petition had abated, and that the petitioners were entitled to be repaid the deposit with accrued interest. Lisgar Elec. Case; Woods v. Stewart, Gout. Cas. 314. 17. Amending mmutes of judgment ■ — Order as to further proceedings in election court — Commencement of trial — Cross- petitions.] — On motions to vary the min- utes of judgment as settled in The Halifax Election Cases (37 Can. g. C. R. 601) [No. 6, ante], in so far as they directed that the election trials should be proceeded with in regard to the cross-petitions, and to vary them so that the parties should be sent back to the Controverted Elections Court in the same position as they were before the ap- peals, and that the said court should be directed, simply, to take such further pro- ceedings as to law and justice might apper- tain, it was contended that such alterations were necessary because trial proceedings on the cross-petitions had never been actually commenced in the court below in so far as the issues thereon were concerned. The court dismissed the motions with costs. Roche v. Borden; Carney v. O'Mullin; Bali- fax Election Cases, Gout. Cas. 421. 18. Controverted elections — Service of petition — Service out of jurisdiction — Second service on agent — Nova Scotia Elec- tion Court Rules.] — Under the Dominion Elections Act service of an election petition cannot be made outside of Canada. Iding- ton, J., dissented. — By Rule 10 of the Nova Scotia Rules under the Election Act, a can- didate returned at an election may, by writ- ten notice deposited with the clerk of the court, appoint an attorney to act as his agent in case there should be a petition against him : — Held, that an agent so ap- pointed is only authorized to act in pro- ceedings subsequent to the service of the petition, and service of the petition itself on him is a nullity. King's (N. S.) Election Case, xxxvi., 520. 19. Controverted election — Commence- ment of trial — Extension of time.] — An order fixing the time for the trial of an elec- tion petition at a date beyond the time pre- srribed under the Act operates as an en- larscmpnt of the time. St. .fames Election Case (33 Can, S. C. R. 1.'17) : Bcauharnois Election Case (32 Can. S. C. R. Ill), fol- lowed. Halifax Election Cases, xxxvii., 601. 20. Preliminary objections — Rules of practice — Repeal — Inconsistency vjith statutory provision — Judgment on prelimin- ary ohjections- — Final determination of stage of cause — Objections — Irregularity by re- turning officer — Appeal — Jurisdiction — Issues in question — Construction of statute — {D.) 37 V. c. 10, ss. U, 45 — R. B. C. 1906, c. 7, ss. 16, 19, 20, 85— R. S. C. 1906, c. 1, s. 20.] — Under the provisions of the " Dominion Controverted Elections Act, 1874," the judges of the Superior Court for the Province of Quebec made general rules and orders for the regulation of the practice and procedure with respect to election peti- tions whereby the returning ofiicer was re- quired to publish notice of such petitions once in the Quebec Official Gazette and twice in English and French newspapers published or circulating in the elector"' division affected by the controversy. By section 16 of chapter 7, R. S. C. 1906, pro- vision is made for the publishing of a similar notice by the returning officer once in a news- paper published in the electoral district. — Held, that the rule of practice is inconsist- ent with the provision as to the notice re- quired by section 16, chapter 7, R. S. C. 1906, and consequently, has ceased to be in force. — Per Duff and Brodeur, JJ. — Even if such rule were still in force, failure on the part of the returning officer to comply with it would not be sufficient ground for the dismissal of the election petition. — Per Davies, Duff, and Anglin, JJ. — Under the provisions of the " Dominion Controverted Elections Act," R. S. C. 1906, c. 7, ss. 19 and 20, preliminary objections are required to be decided in a summary manner ; con- sequently, a decision by an election court judge on any of the preliminary objections disposes of all the issues raised in that stage of the proceedings. Where an election peti- tion is disposed of by the judge upon one of several objections, without consideration of the others, the Supreme Court of Canada has jurisdiction to hear and determine ques- tions arising upon all the preliminary ob- jections in issue before the election court judge ; its jurisdiction is not confined to the objection upon which the judgment ap- pealed from was solely based. Idington, J., contra. Fitzpatrick, C.J., and Brodeur, J., expressing no opinion. Richelieu Election;, Paradis v. Cardin, xlviii., 625. 8. Trial. 21. Vote on municipal by-law — Scrutiny — Powers of judge — Inquiry into qualifica- tion of voter — Disposition of rejected ballots — " Ontario Municipal Act," 190S, ss. 369 et seq. — "Voters' Lists Act," 1906, s. S^.]— A County Court judge holding a, scrutiny of the ballot papers deposited in a vote on a muni- cipal by-law may go behind the voters' list and inquire if a tenant whose name is placed thereon has the residential qualification en- titling him to vote. Davies and Brodeur, .IJ., dissenting. — The judge has no power to inquire whether rejected ballots were cast 429 ELECTEIC EAILWAY. 430 for or against the bj'-law. — Held, per Fitz- patrick, C.J., and Duff, J. — BaHols rejeeted on a scrutiny must be deducted from the total number of votes cast in favour of the by-law. Davies and Brodeur, JJ., contra. — The Supreme Court affirmed the decision of the Court of Appeal (26 Ont. L. R. 339) reversing the judgment of a Divisional Court (25 Ont. L. R. 2167) which reversed the de- cision at the hearing (2.S Ont. L. R. 598). In re West Lome Scrutiny, xlvii., 451. ELECTRICITY. 1. Negligence — Electric Liqht Co. — Wire.s on puhlic highway — Proximity to bridge — Injury to child — Dedication.] — Several years ago the owners of land in the Town- ship of York built a bridge over a ravine for access to and from the City of Toronto, and about 1894 the Toronto Electric Light Co. placed wires across the ravine about ten feet from the bridge. In 1904 the bridge was re- constructed and made wider, being brought to within from 14 to 20 inches of the wires, which had become worn and ceased to be insulated. G., a boy under nine years of age, while playing on the bridge, put his arm through the railing and his hand touching the wire he was badly injured : — Held, reversing the judgment of the Court of Appeal (12 Ont. Z,. R. 413), that the plans and deeds in evidence showed a dedi- cation as a public highway of the bridge and land of each side of it, and such high way included the land over which the wires passed. — Held, also, that the wires in the condition' in which they were at the time of the accident were dangerous to those using the highway, and the company were liable for the injury to G. Gloster v. Toronto Electric Light Co., xxxviii., 27. 2. Negligence — Electric lighting — Dan- gerous currents — Trespass — Breach of con- tract — Surreptitious installations — Liaibil- Hy for damages.] — P. oibtained electric light- ing service for his dwelling only, and signed a contract with the company whereby he agreed to use the suply for that purpose only, to make no new connections without permission and to provide and maintain the house-wiring and appli^ajUces " in efficient condition, with proper protective devices, the whole according to fire underwriters' requirements." He surreptitiously con- nected wires with the house-wiring and car- ried the current into an adjacent building for the purpose of lighting other premises by means of a portable electric lamp. On one occasion, while attempting to use this portable lamp, he sustained an electric shock which caused his death. In an action by his widow to recover damages from the com- pany for negligently allowing dangerous currents of electricity to escape from a de- fective transformer through which the cur- rent was passed into the dwelling : — Held, reversing the judgment appealed from, that there was no duty owing by the company towards deceased in respect of the installa- tion so made by him without their know- ledge .and in breach of his contract, and that, as the accident occurred through contact with the wiring which he had so connected without their permission, the company could not be held liable in damages. Mont- real Light, Heat and Power Co. v. Lau- rence, xxxix., 326. 3. Negligence — Electrical installations — Necessary protection of employees — Onus of proof — Voluntary exposure to danger. Shawinigan Carbide Co. v. St. Onge, xxxvii., 688. 4. Electric lighting — Terms of franchise — Use of highway — Poles and wires. Con- . sumers Electric Co. v. Ottawa Electric Co., Cout. Cas. 311. 5. Negligence — Electric plant — Defective appliances — Master and servant — Electric shock — ■ Engagement of skilled manager — Contributory negligence, xxxiv., 215. See Negligence. , 6. Negligence — Electric wires — Trespasser on electric company' s poles — Evidence — Re- marks of counsel — Contributory negligence — Disagreement of jury — New trial, xxxiv., 698. See Negligence. 7. Negligence — Electrical installations — Cause of fire — Defective transformer — Im- proper installations — Evidence — Onus of proof, xxxvii., 676. See Negligence. 8. Supply of electric light — Cancellation of contract — Condition for terminating ser- vice — Interest in premises ceasing — "Heirs " — "Assigns," xxxix., 567. See Contract. 9. Negligence — Master and servant- — Duty of employee — Insulation of electric wires — Onus of proof, xi., 181. See Negligence. 10. Electric transmission — Statutory au- thority — Special Act — Negligence — Char- acter of installations — System of operation — Grounding transformers — Defective fit- tings — Vis major — Responsibility without fault — Art. lOSJf G. C. Vaudry v. Quebec Ry., Light, Heat, etc., liii., 72. See Negligence. ELECTRIC INSTALLATIONS. Taxation of electric and gas installations on streets — Construction of statute — Words and phrases — " Terrain " ■ — " Lot "• — Im- movable property — Charter of Totcn of WestmountSe V. c. 54, s. 100, xliv., 364. See Assessment and Taxation. ELECTRIC RAILTVAY. See Tramways. 431 EQUITY, COUETS OF. 433 ELECTRIC TRANSMISSION. Statutory authority — Special Act — Negli- gence — Character of installations — System of operation — Grounding transformers — Defective fittings — Vis major — -Responsilil- ity without fault — Art. 1054 C. 0. liii., 72. See Negligence. 2. Negligence — Master and servant — Use of motor car — Disobedience — Act in course of employment, 1., 471. . See Negligence. EMINENT DOMAIN. See ExpROPEiATioN. Negligence — Electrical installations — Necessary protection of employees — Onvs of proof — Voluntary exposure to danger, f-'haw- inigan Carbide Go. v. St. Onge, xxxvii., 688. And see Master and Sebvant. See Constitutional Law: Expbopbiation. EMPLOYER AND EMPLOYEE. See Mastee'and Servant. EMPLOYER'S LIABILITY. 1. Negligence — Ship labourer — Disregard of rules — "Accident in course of employ- ment " — Action — Claim by dependents — Findings of jury — Evidence — Art. 1054 C. C] — A labourer employed on board a sMp went ashore for purposes of his own while the ship was in port and, on returning to his work, he attempted to descend from the upper deck by the hatchway, which was prohibited by rules laid down | for the men engaged in stowing cargo. In doing so he fell into the hold, his body struck his fore- man (who was there in the discharge of his duties) and caused injuries which resulted in the death of the foreman. There was evidence to shew that the rules, which re- quired labourers to use the companion-way, instead of the hatchway by which the labourer had attempted to descend, had been habitually disregarded. The jury found that the defendants were at fault " in not having taken the necessary precautions to enforce their rules," judgment went for the plaintiff, and this judgment was affirmed by the Court of Review. — Held, that there was evidence to support the finding of the jury and, consequently, their verdict should not be disturbed on appeal. — Qucere, per Fitz- patrick, O.J. — Whether or not the course of judicial decisions in the Province of Que- bec has adopted the principle that in a case like the present, an employer is subject to liability derived from the law alone, and departed from' the rule of the Roman Civil Law that there is no liability without fault. • — Per Brodeur, J. — The exception, in ar- ticle 1054 C. C., relieving parents, tutors, curators, schoolmasters and artisans from liability in cases where it is established that they could not prevent the act which caused injury, does not apply to employers. Don- aldson V. Deschenes ; vide negligence, xlix., 136. EQUITABLE ASSIGNMENT. Builders and contractors — Materials, sup- plied — Order for money payable under con- tract — Evidence — Estoppel — Lien — Prac- tice.} — ^A building contractor gave a written order upon the owner directing him to pay the sum of $800 to the plaintiff on account of tlie price of materials supplied for use in the building which was being erected. The order was presented to the owner aud, al- though not accepted in writing, was held over to await the time for making payments 'inder the contract. The contractor failed to complete the work, and it was finished by the owner at an outlay which left the bal- ance of the contract price insufficient to meet the full amount of the order. — Held, the Chief Justice and Idington, J., dissent- ing, that the order was effective as an as- signment of money payable under the con- tract, but, as there was no evidence of a promise to pay the amount thereof out of the fund, or of facts precluding the owner from denying the sufficiency of what ulti- mately was payable to the contractor, it could not be enforced against the owner as an equitable assignment. — Per Duff, J. — As the equita!ble relief sought could be granted only upon a consideration of all the circum- stances and no claim therefor was made in the courts below nor was the evidence di- rected to any such claim, the claim' came too late on an appeal to the Supreme Court of Canada. — Per Fitzpatrick, C.J., and Iding- ton, J., dissenting. — ^As the conduct of the owner respecting the order was equivocal and misleading and induced 'the materialman to abstain from filing a lien to protect him- self, the owner ought to be held liable for the full amount of the order as an equitable assignment. — The appeal from the judg- ment of the Appellate Division (8 West. W. R. 729) was dismissed with costs. Ritchie v. Jeffrey, lii., 243. EQUITABLE RELIEF. Title to land — Conveyance in fraud of creditors — Husband and wife — Advancement — Trustee — Restitution — Evidence — Stat- ute of Frauds, lii., 625. See Title to Land. EQUITY, COURTS OF. Contract — Sale of lands — Exchange — Specific performance — Foreign lands — Jur- isdiction of courts of equity — Mutuality of remedy — Relief in personam — Discretionary order — Appeal — Jurisdiction — " Final judg- ment." Jones V. Tucker, liii., 431. See Specific Performance. 433 ESTOrPEL AND WAIVEli. 434 ERROR. 1. Vendor and purchaser — Sale of lands — Misrepresentation — Fraud — Error — Rescission of contraict — Sale or exchange — Dation en paiement — Improvements on pro- perty given in exchange — Option of party aggrieved — Action to rescind — Actio quan- tum minoris — Latent defects — Damages ■ — Warranty — Agreement in loriting — Formal deed, xxxiv., 102. See Vendor and Purchaser. 2. Misrepresentation — Lay agreement — Mortgage — Execution of documents hy illi- terate persons — Evidence, xxxv., 110. See Contract. And see Mistake. ESCHEAT. Devolution of estates — Intestacy — Failure of heirs — Royalty — Bona vacantia — Domin- ion lands — Constitutional law — Surrender of Hudson Bay Company's lands — Construc- tion of statute — "B. JV. A. Act, 1867 " — " Dominion Lands Act " — " Land Titles Act" — "Alberta Act" — {Alta.) 5 Geo. V. c. 5, Intestate estates — Oroicm.] — In 1911, certain lands of the Dominion of Can- ada, situate in the Province of Alberta, were granted in fee to a person who died, in 1912, intestate and without heirs, being still seized in fee simple of the lands. — Held, Idington and Brodeur, JJ., dissenting, that the right of escheat arising in conseijuence of the in- testacy and failure of heirs was a royalty reserved to the Dominion of Canada by virtue of the 21st section of the " Alberta Act," 4 & 5 Edw. VII. c. 3, and belonged to the Crown for the purposes of Canada. Attorney-General of Ontario v. Mercer (8 App. Gas. 767) followed. — Per Davies and Anglin, JJ. — It was not competent for the Legislature of the Province of Alberta, by the statute of 1915, 5 Geo. V. c. 5, relating to the property of intestates dying without next of kin, to affect the rights so reserved to the Dominion of Canada. — Per Idington and Brodeur, JJ. — Upon the grant of the lands in question by the Dominion Govern- ment they ceased to be Crown lands of the Dominion and royalties reserved to the Do- minion could not attach thereto. Further, the effect of section 3 of the Dominion stat- ute, 51 Vict. c. 20, amending the " Territor- ies Real Property Act," R. S. C. 1886, c. 51, and declaring that lands in the North-West Territories should go to the personal repre- sentatives of the deceased owner thereof in the same manner as personal estate, con- stituted an absolute renunciation of all such claims to royalties by the Crown in the right of the Dominion of Canada. — The ap- peal from the judgment of the Exchequer Court of Canada (15 Ex. C. R. 403) was dismissed. Trusts & Guarantee Go. v. The King, liv., 107. See Constitutional Law. ESTOPPEL AND WAIVER. 1. Estoppel by Conduct, 1-7. 2. Estoppel by Deed, 8. 3. Estoppel by iRecoed, 9-10. 4. Other Cases, 11-43. 1. Estoppel by Conduct. 1. Double insurance — Claims on both insurers — Right of action.] — Where there had been a double insurance effected on ac- count of the insured attempting to abandon one insurance and insure the same property in another company, it was held that, under the special circumstances of the case, the fact that the insured had made claims upon both insurers did not deprive him or his assignees of the right to recover against the insurer liable upon the risk at the time of the loss. Manitoba Assurance Co. v. Whitla; Whitla v. Royal Insurance Co., xxxiv., 191. And see Insurance, Fire. 2. Sale of goods — Owner not in possession — Authority to sell — Secret agreement — Es- toppel.] — ^The owners of logs, by contract in writing, agreed to sell and deliver them to McK., the title not to pass until they were paid for. The logs being in custody of a boom company, orders were given to deliver them as agreed. E., a dealer in lumber, telephoned the owner asking if he had them for sale and was answered " No, I have sold them to McK." B. then purchased a portion of them from' McK., who. did not pay the owner therefor and he brought an action of trover against E. — Held, affirming the judg- ment appealed irom (36 N. B. Rep. 169) Nesbitt and Killam, JJ., dissenting, that the owner having induced E. to believe that he could safely purchase from McK could not afterwards deny the authority of th« latter to sell.- — Held, per Nesbitt and Killam, JJ., that as there was no evidence that the owner knew the identity of the person making the inquiry by telephone, and nothing was said by the latter to indicate that he would not , make further inquiry as to McK.'s author- ity to sell, there was no estoppel. — Held, per Taschereau, C.J., that as the owners had given McK. an apparent authority to sell, and knew that he had agreed to buy for that purpose, a sale by him to a bond fide pur- chaser was valid. Peoples Bank of Halifax V. Estey, xxxiv., 429. 3. Conduct — Forgery — Promissory note — Discount — Duty to notify holder.] — E. & Co., merchants at Montreal, received from the Dominion Bank, Toronto, notice in the usual form that their note in favour of the Thomas Phosphate Co., for $2,000 would fall due at that bank on a date named and asking them to provide for it. The name of E. & Co. had been forged to said note which the bank had discounted. Two days after the notice was mailed at Toronto the pro- ceeds of the note had been drawn out of the bank by the payees. — Held, affirming the judgment of the Court of Appeal (7 Ont. L. II., 90) , Sedgewick and Nesbitt, JJ., dis- 435 ESTOPPEL AND WAIVER. 436 senting, that on receipt of said notice E. & Co. were under a legal duty to inform the bank, by telegraph or telephone, that they had not made the note and not doing so they were afterwards estopped from denying their signature thereto. (Leave to appeal to Privy Council refused {[1904] A. C. 806.) Ewing v. Dominion Bank, xxxv., 133. 4.' Grown — Breach of trust — Purchase of debentures out of Common School Fund — ■ Knowledge of m/isappUcation of moneys — Payment of interest — Statutory prohibition — Evasion of statute — Betoppel against the Crown — Action — Adding parties — Practice. ] — In an action by the Crown against the Quebec North Shore Turnpike Road Trus- tees to recover interest upon debentures pur- cliased from them by the Government of the late Province of Canada (with trust funds held by them belonging to the Common School Fund), the defendants pleaded that the Crown was estopped from recovery in- asmuch as, at the time of their purchase, the advisers of the Crown were aware that these debentures were being issued in breach of a trust and with the intention of mis- applying the proceeds towards payment of interest upon other debentures due by them in violation of a statutory prohibition. — Held, aflBrming the judgment appealed from (8 Ex. C. K. 890) that, as there was statu- tory authority for the issue of /the deben- tures in question, knowledge of any such breach of trust or misapplication by the advisers of the Crown could not be set up as a defence to the action. Quebec North Shore Turnpike Road Trustees v. The King, xxxviii:, 62. 5. Crown — Banks and banking — Forged cheques — Payment — Representation by drawee — Implied guarantee — ■ Estoppel- — Acknowledgment of bank statements — Lia- bility of indorsers — Mistake — Action — ■ Money had and received.'] — A clerk in a de- partment of the Government of Canada, whose duty was to examine and check its account with the Bank of Montreal, forged departmental cheques and deposited them to his credit in other banks. The forgeries were not discovered until some months after these cheques had been paid by the drawee to the several other banks, on presentation, and charged against the Receiver-General on the account of the department with the bank. None of the cheques were marked with the drawee's acceptance 'before payment. In the meantime, the accountant of the depart- ment, being deceived by false returns of checking by the clerk, acknowledged the cor- rectness of the statements of the account as furnished by the bank where it was kept. In an action by the Crown to recover the amount so paid upon the forged cheques and charged against thte Receiver-General. — Held, affirming the judgment appealed from (11 Ont. L. R. 595) that the bank was liable unless the Crown was estopped from setting up thp forgery. — Per Davies, Idington and Duff, JJ., that estoppel could not be in- voked against the Ctown. — Per Girouard and Macleunan, JJ., that, apart from the question of the Crown being subject to estoppel, under the circumstances of this case ii private person would not have been estopped had his name been forged as drawer of the cheques. — Per Davies and Idington, JJ. — The acknowledgment by the account- ant of the department of the correctness of the statements furnished by the bank, being made under a mistake as to the facts, the accounts could be re-opened to have the mistake rectified. — The defendant bank made claims against the other banks, as third parties, as indorsers or as having re- ceived money paid by mistake, for the re- imbursement of the several amounts so paid to them respectively. On these third party issues, it was held. — Per Girouard and Mac- lennan, JJ. — ^The drawee, having paid the cheques on which the name of its customer was forged, could not recover the amounts thereof from holders in due course. Price v. Neal (4 Burr. 1355) followed. — Per Davies and Idington, JJ. — ^As the third party banks relied upon the representation that the cheques were genuine, which was to be im- plied from their payment on presentation, and subsequently paid out the funds to their depositor or on his order, the drawee was estopped and could not recover the amounts so paid from them either as indorsers or as for money paid to them under mistake. — In the result, the judgment appealed from (11 Ont. L. R. 595) was affirmed. Bank of Montreal v. 'Fihe King, xxxviii., 258. 6. Life insurance — Non-payment of pre- miums — ' Misrepresentation to insured.'] — P., in payment of premiums pn a life policy, gave his note for one instalment and an overdue balance of another. Shortly before it matured an official of the company, spe- cially authorized to deal with the matter, informed P. that his policy had lapsed owing to the inclusion in the note of the overdue balance which was against the company rules. In consequence of this representation P. did not pay the note nor tender the amount of another instalment falling due before his death. In an action on the policy by the beneficiary no rule of the company was proved avoiding the policy as stated. — Held, affirming the judgment appealed against (48 N. S. Rep. 404), Fitzpatrick, C.J., and Da- vies, J., dissenting, that the company was estopped, by conduct, from claiming that the policy lapsed on non-payment of the note and subsequent instalment. — Per Da- vies, J., that the non-payment of the note could not be relied on as avoiding the policy, but the estoppel did not extend to the fail- ure to pay the quarterly premium which jifterwards became due. Capital Life As- surance Go. v. Parker, li., 462. 7. Principal and agent — Receipt delivered before payment.] — The local agent of the rnilway company received the personal cheque of the defendants' agent in settle- ment of freight charges due 'by the defend- ants and thereupon receipted the freight bills'. By means of these receipted bills the defendants' agent was enabled to obtain the amount of the freight charges from his employers and absconded, leav- ing no funds to meet his cheqjie which was dishonoured. In an action for the re- covftry of the amount of the freight charges. — Held, reversing the judgment appealed from (8 Alta. L. R. 363), Duff and Bro- deur, JX, dissenting, that the delivery of the receipts in advance of payment afforded 437 ESTOPPEL AND WAIVBE. 438 meaus of inducing the defendants to pay over the amount represented By them to their agent and, consequently, the plaintiffs were estopped from denying actual receipt of payment of the freight charges. — Per Duff, J., dissenting. — In the circumstances disclosed by the evidence in the case the principle of estoppel could not be applied. Gentles v. Canadian Pacific Railway Co. (14 Ont. L. R. 286), distinguished. Conti- nental Oil Go. V. Canadian Pacific Railway Co., )ii., 605. 2. Estoppel by Deed. 8. '-I'itfe to land — Lease for years — Pos- session by sub-tenant — Purchase at sheriff's sale — Adverse occupation — Evidence — Con- veyance of rights a/oguired — Compromise — - Waiver.'] — The court held that the accept- ance of a deed of compromise in respect to the tenure of real property, which excluded certain lands, estopped the appellant from any claim for compensation for the expro- priation of lands forming part of the ex- cluded area. Sheets v. Tait, Gout. Cas. 158. 3. Estoppel by Record. 9. Contract by murucipal corporation ■ — Powers — By-law or resolution — Right of action — Confession of judgment — Evidence — Admissions — Pleading — Estoppel by record — Art. 121(5 C. C. — Concurrent find- ings of fact.] — A confession of judgment for a portion of the amount claimed is a judi- cial admission of the pla'intiff's right of ac- tion and constitutes complete proof against the party making it. The V. Hudon Cotton Co. V. The Canada Shipping Co. (13 Can. S. C. R. 401) followed; The Great North- West Central Railway Go. v. Charlebois et al. ([1899] A. C. 114; 26 Can. S. C. R. 221) distinguished. — Upon issues raised as to matters of fact, the court refused to dis- turb the concurrent findings of the courts below. — Judgment appealed from (Q. R. 13 K. B. 19) reversed and judgment at the trial (Q. R. 21 S. C. 241) restored. Citi- zens Light and Power Co. v. Town of St. Louis, xxxiv., 495. 10. Pleading — Objections taken on ap- peal — Yukon territorial Court Rules — Yukon Ordinances — Waiver.] — In an action to set aside a conveyance as made in fraud of creditors, the defendant desiring to meet the action by setting up that there was no debt due and, consequently, that no such fraud could exist, must allege these objections in his pleadings. — In the present case the defendant, having failed to plead such defence, was allowed to amend on terms, the Chief Justice dissenting. Syndi- cat Lyonnais du Klondyke v. McGrade, xxxvi., 251. 4. Othek Cases. 11. Life insurance — Payment of premium — Thirty days' grace — Death of insured af- ter premium due. People's Life Ins. Co. v. Tasttersall, xxxvii., 690. 12. Action negatoria servitutis — Bound- ary ditch — Waiver of objections — Evidence. Breton v. Gonthier dit Bernard, Cout. Cas. 350. 13. Sheriff's sale — Title to land — Insur- able interest — Trust — Beneficiary — Fraudulent contrivances — Estoppel, xxxiv., 1. See Lease. 14. Commissioner of mines — Appeal from decision — Quashing appeal — Final judg- ment — Mandamus — • Appropriate remedy, xxxiv., 328. See Appeal. 15. Title to lands — Grant from Crown — Description — Navigable or floatable waters — Inlet of navigable river — Implied reser- vations — Crown domain — Public Iww — Construction of deed ■ — • Evidence — Waiver, xxxiv., 603. See RrvEEs and Streams, 16. Mutual life insurance — Natural pre- mium system — Level premium — -Mortuary calls — Rate of assessment — Rating at at- tained age — Fraud — Puffing statements — Warranty — Misrepresentation — Acqui- escence — Mistake — Prescription of contract, XXXV., 330. See IrrsuEANCE, Life. 17. Debtor and creditor — Assignment of debt — Sheriff's sale — Equitable assignment — Statute of Limitations — Payment — Ratifi- cation — Principal and agent, xxxv., 533. See Debtob and Cbeditob. 18. Pleading — ■ Cross-demand — Compen- sation — Arts. 8, 203, 205, 207 G. P. Q. — Practice — Damages — Gdnstruction of con- tract — Liquidated damages — Penal clause — Arts. 1076, 1187, 1188 G. C. — Waiver, xxxvi., 347. See Contkact. 19. Sheriff's sale of lands — Opposition afm de charge — Discretionary order — De- fault in furnishing security — Res judicata — Estoppel by record, xxxvi., 613. ■See Res Judicata. 20 Breach of contract — Breach of trust — Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Account — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel, xxxviii., 198. See Trusts. 21. Infringement of patent — Purchase of patented device, xxxviii., 451. See Patent or Invention. 22. Placer mining — Disputed title — Tres- pass pending litigation — Colour of right — Invasion of claim — Adverse acts — Sinister intention — Conversion — Blending materials — Accounts — Assessment of damages — Miti- gating circumstances — Compensation for necessary expenses— ^Standing-by — Acqui- escence, xxxviii., 516. See Mines and Mixing. 439 EVICTION", 440 23. Agreement for sale of land — Principal and agent — Estoppel — " Land Coinmis- aioner" — Specific performances, xxxix., 169. See Specific Performance. 24. Construction of deed — Title to land — Servitude^Acquiesoence — Estoppel ly con- duct — Actio negatoria servitutis- -Operation of waterworks, xxxix., 244. See Deed. 23. Sheriff — Cause of action — IS.TKcution of writ 0^ attachment — Ahando^f^ment of seizure, Cam. Cas. 78. See Attachment. 26. Bills of exchdnge — Forgery — Ratifica- tion, Cam. Cas. 275. See Burs and Notes. 27. Sale of goods — Insolvency — Bond fides — Fraudulent preferences — Inter- pleader — Bes judicata — Pleading — Bar to action, Cam. Cas. 306. See Sale. 28. Sale of goods — Delivery — Lien of un- paid vendor — Stoppage in tramsitH — Goods not separated from larger bulk, Cam. Cas. 511. See Sale. 29. Operation of railway — Negligence — Moving train — Regulations — Personal lia- Mlity of employee. Cam. Cas, 589. See Negligence. 30. Mechanics' lien — Contract ■ — Over- payment — Liability of owner of land — At- taching of lien — Negotiation of note — Claim of lien-holder — Waiver. Travis v. Breckenridge-Lund Lumber & Coal Co., xliii., 59. See Mechanics' Lien. 31. Board of Railway Commissioners — ■ Jurisdiction — Private siding — Construc- tion of statute — " Railway Act," R. S. G. (1906) 0. 57, ss. 222, 226, S17— Branch of railway — Res inter alios, xliv., 92. See Railwats. 32. Deed of land — Description — Admissions, xliv., 246. See Title to Land. Am- 33. Company law — Issue of shares — Au- thority to sign certificate — Evidence, xlv.. 232. See OOMPANT. 34. Municipal corporation — Assessment and taaoes — Meetings of council — Court of Revision — Transaction of business outside limits of municipality — Place of meeting — Revision of assessment rolls — By-laws — Sale for arrears of taxes — Construction of statute — 'Statutory relief — Acquiescence — Laches — Limitation of action, xlv,, 425. See Municipal Coepoeation. 35. Banking — Security for advances — Assignment — Chose in action — Moneys to arise out of contract — Unearned funds — Equitable assignment to third party ■ — No- tice — Evidence — Priority of claim — Con- struction of statute — Manitoba " King's Bench Act " — " Bank Act," xlvii., 313 See Banking. 36. Trespass — Easement — Public way — Dedication — User — Prescription — " Law and Transfer of Property Act," R. 8. 0. 1897, c. 119. Peters v. Sinclair, xlviii., 57. See Easement. 37. Benevolent society — Life insurance — Contract — Paymerit of assessments ■ — Extension of time — Rules and regulations — Place of_ payment — Demand — Default — Suspension — A'Hthority to waive condi- tions — Conduct nf officials — Company law, xlix., 229. See Insurance, Life. " 38. Old trails of Rupert's Land — Survey , — Width of highway — Construction of stat- ute — " North-West Territories Act," s. 108 — Transfer of highway — Plans — Registra- tion — Dedication — Expenditure of public funds. Rowland v. City of Edmonton, 1., 520. See Highways. 39. Covenant in mortgage — Married wo- man — Signature procured by fraud — Plead- ing — Non est factum, 1., 485. See Feaud. 40. Builders and contractors — Materials supplied — Order for money payable under contract — ■ Evidence — Lien — Enforcing equitable assignment — Practice. Ritchie v. Jeffrey, lii., 243. See BtjiLDEBs and Conteaotors. 41. Appeal ■ — Jurisdiction of provincial tribunal — Consent of parties — Assessment — Railway bridge over navigable river. Township of Cornwall v. Ottawa & N. Y. R. R., lii., 466. See Assessment and Taxes. 42. Quebec marriage laws — Community of property — Dissolution by death — Failure to make inventory — Insolvent estate — Continu- ation of community — Renunciation. Laroche V. Laroche, lii., 662. See Marriage Laws. 43. Fire insurance — Statutory conditions — Notice — Conditions of application — B. S. Q. 1909, arts. 7034-7036 — Conditions in- dorsed on policy — Keeping and storing eoal oil — Agent's knowledge — Waiver — Adjust- ment cf claim — Offer of settlement by ad- juster — Transaction. Laforest v. Factories Ins., liii., 296. See Insueance, Fire. EVICTION. 1. Crown larids — Adverse possession — Oiant during — Information for intrusion —21 Jac. I. c. U (Imp.), xxxiv., 533.. , See Crown Lands. 441 EVIDENCE. 1-k' 2. Title to land — Promise of sale— Entry in land register — Tenant iy sufferance — Squatter's rights — Possession in good faith — Eviction — Possessory action — Compensation for improvements — Rents, issues and profits — Set-off — Tender of deed — Restrictive conditions — Evidence — Arts. 1,11, 412, in, 419, 1204, 1^33, 1476, WS C. C, xxxix., 47. See Action. 10. 11. 12. 13. EVIDENCE. Admissibility, 1-21. Admissions, 22-29. On Appeals, 30-34. cokboboeation, 35-36. EXPEBTS, 37. Findings of Fact, 38-77. Malice, 78-79. Onus of Proof, 80-102. Pkbstjmptions, 103-116. Secondary Evidence, 117-118. Sufficiency of Proof, 119-153. i Varying Terms op Writings, 154-157. Weight of Evidence, 158. 1. Admissibility. 1. Evidence — Parol — Commencement of proof in writing — Art. 1233 C. G. — Admis- sions—Art. 316 G. P. Q.— Practice — Adduc- tion of evidence — Objections to testimony — Rule of public order.] — ^Admissions made to the effect that a notary had invested moneys and collected interest on loans for the plain- tiff do not constitute evidence of agency on the part of the notary, nor could they amount to a commencement of proof in writing as required by art 1233 of the Civil Code, read in connection with art. 316 of the Code of Civil Procedure, to permit the adduction of parol testimony as to the au- thorization of the notary to receive pay- ment of the capital so invested or as to the repayment thereof alleged to have been made to him as the mandatory of the creditor.- — • The prohibition of parol testimony, in cer- tain cases, by the Civil Code is not a rule of public order which must be judicially noticed, and, where such evidence has been improperly admitted at the trial without objection, the adverse party cannot take objection to the irregularity on appeal. Oervais v. McCarthy, xxxv., 14. And see Principal and Agent. 2. Crown lands — Mining leaise — Tres- pass — 'Conversion — Title to lands — Descrip- tion in giant — Plan of survey — Certified copy.l — The provisions of section 20 of "The Evidence Act," R. S. N. S. (1900) c. 160, do not permit the reception of a certified copy of a copy of a plan of survey deposited in the Crown Lands Office to make proof of the original annexed to the grant of lands from the Crown. Nova Scotia Steel Company v. Bartlett, xxxv., 527. 3. Revendication — Statement of claim — Pleadings — Procedure — Arts. 110 and 339 C. P. Q. — Evidence — Judgment secun- dum allegata et probata — Ultra petita ■ — Surprise.} — In an action for revendication of books, documents and records retained by a fire insurance agent after his dismissal and for damages in default of delivery thereof, several policy copy-books, which could not be found at the time of the sei- zure, were delivered up in a mutilated con- dition by the defendant during the pendency of the action, the defendant being unaware of such mutilation. 'Some time afterwards the answers to defendant's pleas were filed and contained no reference to the mutilated and incomplete condition in which these books were returned. At the trial plain- tiffs were allowed to give evidence as to the cost of replacing these books in proper con- dition, although defendant objected to the adduction of such proof, and the trial court judge assesssed damages in this respect at $200, and at $2,000 in respect of certain mutilated plans, at the same time declaring the revendication valid, etc. On appeal by the plaintiffs from the judgment of the Court of King's Bench, reversing the trial court judgmeiit in regard to the pecuniary condemnation. — Seld, affirming the judg- ment appealed from, that as the defendant had been surprised, in so far as the issues affecting the policy copy books were con- cerned, he was entitled to relief as to the item of $200 for damages in respect thereof. With regard to the item of $2,000 damages, however, as the defendant could not have been taken by surprise, he himself having mutilated the plans, the Supreme Court of Canada reversed the judgment appealed from and restored the trial court judgment as to that item of the damages assessed. Norwich Union Fire Ins. Co. v. Kavanagh, xxxvi., 7. 4. Title to land — Conveyance of fee — Re- servation of life estate — Possession — Eject- ment.'] — iln Oct., 1853, D. conveyed to his father and two sisters six acres of land for their lives or the life of the survivor. A few days later he conveyed a block of land to M. in fee " saving and excepting " there- out six acres for the life of the grantor's father and sisters or that of the survivor, or until the marriage of the sisters, on the hap- pening of said respective events, the six acres to be and remain the property of M., his heirs and assigns under said deed. Three months later M. conveyed the block of land to R. M. in fee, and, when the life estate terminated, in 1903, the latter brought eject- ment against the heirs of the life tenants who claimed the six acres on the ground that the deed to M. contained no grant of the same and also because the life tenant had had adverse possession for more than twenty years. — Held, that as the evidence shewed that the life tenants went into pos- session under R. M., the title of the latter could not be disputed and the statute would not begin to run until the life estate termin- ated. — Held, per Idington, J., that R. M. 'nder his deed and that to his grantor had the reversion to the fee in the six acres after the life estate terminated. — The lease of the life estate was given to R. M. with the other title deeds on conveyance of the land to him and on the trial it was received in evidence 443 EVIDENCE. 444 as an ancient" document relating to the title and coming from proper custody. It wag not executed by the lessee and no counter- part was proved to be in existence.— HeW, that it was properly admitted in evidence. Dods V. McDonald, xxxvi., 231. 5. Admissibility of evidence — Harmless error — New trial.] — Tlie action was for the price of goods sold and delivered, and the defence that the goods were received by de- fendant as plaintiff's manager and not otherwise. A new trial was ordered on the ground that plaintiff's books of account were improperly received in evidence against the defendant. The Supreme Court of Canada reversed the judgment appealed from (37 N. S. E. 361-) and restored the verdict at the trial, holding that the books were re- ceived on the taking of evidence under com- mission by the express consent of both par- ties, and their reception could not after- wards be objected to on the general ground that they were irrevelant and immaterial to the issue. Carstens v. Muggah, xxxi., 612. 6. Controverted election — Petition — Pre- liminary objections — Status of petitionet — Premature service — Return of member.] — On the hearing of preliminary objections to ;in election petition the status of the peti- tioner may be established by oral evidence not objected to by the respondent. Yukon Election Case, xxxvii^ 495. And see Election Law. 7. Rivers and streams — Navigable and floatable waters — Obstructions to navigation — ■Groion lands — Letters patent of grant — Collateral circumstances leading to grant — Limitation of terms of grant — Title to land — Riparian rights — Fisheries — Arts. 400, Jfl/t, 60S 0. C] — A river is navigable when, with the assistance of the tide, it can be na- vigated in a practical and profitable manner, notwithstanding that at low tide it may be impossible for vessels to enter the river on account of the shallowness of the water at its mouth. Bell v. The Corporation of Que- bec (5 App. Gas. 84), followed. — Evidence of the circumstances and correspondence leading tO' grants 'by the Crown of lands on the banks of a navigable river cannot be admitted for the purpose of shewing an in- tention to enlarge the terms of letters pat- ent of grant of the lands, subsequently is- sued, so as to include the bed of the river and the right of fishing therein. — The judg- ment appealed from (Q. R. 14 K. B. 115) was reversed and the judgment qf the Su- perior Court (Q. R. 25 S. C. 104) was re- stored. Bteadman v. Robertson (18 N. B. Rep. 580) and The Queen v. Robertson (6 Can. S. C. R. 52') referred to ; In re Pro- vincial Fisheries (26 Can. S. C. R. 444 ; (1898) A. C. 700) discussed. (An appeal proposed to be taken to Privy Council was abandoned upon a settlement made between the parties, 5th June, 1907.) Atty.-Oen. of Quebec v. Fraser; Atty.-Oen. of Quebec v. Adams, xxxvii., 577. 8. Controverted election — Trial of peti- tion — Corrupt acts at former election — Agency — System of corruption.] — A peti- tion against the return of a member for the House of Commons at a general election in 1904 contained allegations of corrupt acts by respondent at the election in 1900 which were struck out on preliminary objections. On the trial of the petition, evidence of pay- ments by respondents of accounts in con- nection with the former election was offered to prove agency and a system and was ad- mitted on the first ground. A question as to the amount of one account so paid was objected to and rejected. — Held, that such rejection was proper ; that the question was not admissible to prove agency for agency was admitted or proved otherwise ; nor as proof of a system which could not be estab- lished by evidence of an isolated corrupt act. — Held, also, that where evidence is tendered on one ground other grounds cannot be set up in a Court of Appeal. Shelburne and Queen's Election Case, xxxvii., 604. 9. Practice — Examination of witnesses — Expert testimony — -2 Edw. VII. c. 9, ». 1.] — ^By 2 Edw. VII. c. 9, s. 1, only five expert witnesses can be called by either side on the trial of a ease without leave. Qucsre. — If more are so called without abjection by the opposite party is the testimony of the extra witness valid? Dodge v. T%e King, xxxviii., 149. And see Expropriation. 10. Criminal law — • Practice — Crown case reserved — Reserved questions — Dissent from affirmance of conviction — Appeal ■ — Jurisdiction — Criminal Code, 1892, ss. 7^3, 7J,3, tU, 750— R. S. G. (1906) c. 1J,6, ss. 1013, 1015, 1016, 1024 — Admission of evi- dence — Res gestw.] — Evidence of statements made by a person, since deceased, im- mediately after an assault upon him, under apprehension of further danger and request- ing assistance and protection, is admissible as part of the res gestw, even though the person accused of the offence was absent at the time when such statements were made. Reg. v. Beddingfield (14 Cox 341). Rex v. Foster (6 O. & P. 325) and Avcmn v. Kin- naird (6 East 188) followed. — Statements not coincident, in point of time, with the occurrence of the assault, but uttered in the presence and hearing of the accused and under such circumstances that he might rea- sonably have been expected to have made some explanatory reply to remarks in refer- ence to them, are admissible as evidence. — On the trial of an indictment for murder the evidence was that the deceased had been killed by a gun-shot wound inflicted through the discharge of a gun in the hands of the accused and the defence was that the gun had been discharged accidentally. — Held, that, in view of the character of the defence and the evidence in support of it, there could be no objection to a charge by the trial judge to the jury that the offence could not be reduced by them from murder to man- slaughter, but that their verdict should be either for acquittal or one of guilty of mur- der. Chllbert v. The King, xxxviii., 284. And see Criminal Law. 11. Boundary — Order for bornage— Evi- dence — Existing posts and blazing — Injunc- tion Expertise — Reference to surveyors — • Reports and plans — • Costs in action en bornage.] — The Court of King's Bench, ap- peal side (Q. R. 15 K. B. 432), affirmed. 445 EVIDENCE. 446 with alight variations, a judgment ordering ii refereuce to survgyors to run a boundary line according to a division line between posts said to exist and blazings on trees, directing them to make a plan and report, and rejecting objections to the reception of certain evidence. The judgment appealed from held that oral testimony as to a for- mer homage by a surveyor, with his field notes, as to the existence of posts at either end of the division line, blazings along the line, and of 18 years possession in conform- ity therewith was admissible and sufficient to establish a settlement of boundaries, in the absence of an official statement of proc6s- verhal thereof, and that costs had been pro- perly awarded to the successful party in the action en homage, which was governed by the usual rules as to costs. An appeal to the Supreme Court was dismissed for the reasons given in the court below. Lauren- tide Mica Co. V. Fortin, xxxix., 680. 12. Improper admission — Uncorroborated testimony of plaintiff — Contradictory evi- dence — Verdict against weight of evidence.] — The plaintifiE claimed the price of certain goods delivered to the defendant's brother, alleging that defendant verbally agreed that notes at three months should be given in payment of the goods by the brother, and when they matured the defendant would give his own promissory notes at four months. The defendant denied that he ever made any such agreement, and said that any notes given by him were to help his brother in his business and were not made payable to the defendant. The trial judge admitted evi- dence of the plaintiff of a statement alleged to have been made to him by the defendant's brother when bringing a note made by the defendant in favour of his brother to take up the latter's note. The jury gave a ver- dict for the plaintiff, and a new trial was refused by the court below. — Held, the Chief Justice and Taschereau, J., dissenting, that the plaintiff's dealings with the defendant's brother were inconsistent with the plain- tiff's statement of the transaction, and that there should be a new trial — Held, per Fouruier, Henry and Gwynne, JJ., that the plaintiff was not entitled to give in evidence a statement made by the defendant's brother as to what the defendant had instructed him to say to the plaintiff when substituting the defendant's note for his own. Fraser v. Stephenson (Gout. Dig. 577; 996) ; Cam. Cas. 214. 13. Board of Railway Commissioners — Consideration of complaints — Rejection — Agreement as to special rates — Unjust dis- crimination.] — A company operating, sub- ject to Dominion authority, a tramway through several municipalities adjacent to the City of Montreal, and having connec- tions and traffic arrangements with a pro- vincial tramway in that city, entered into an agreement under statutory authority with one of the municipalities whereby in consideration of special privileges conceded in regard to the use of streets, etc., lower rates of passenger fares were granted to persons using the tramway therein, for transportation to and from the city, than to denizens of the adjoining municipality with which there was no such agreement. On the hearing of a complaint, alleging un- just discrimination in respect to fares, the Board of Railway Commissioners for Can- ada refused to take the agreement into con- sideration when tendered in evidence to jus- tify the granting of the special rates and ordered the company, appellants, to fur- nish the service to persons using the tram- way in both municipalities at the same rates of fare. On an ai>peal, by leave of the Board, in respect of the propriety of over- looking the contract, submitted as a ques- tion of law : — Held, Davies and Anglin, JJ., dissenting, that, as the existence of the con- tract was one of the elements bearing upon the decision of the question of substantial similarity in circumstances, the Board should have admitted the evidence so ten- dered in regard to the agreement in consid- eration of which the special rates of fares had been granted. Montreal Park and Is- land Railway Co. v. City of Montreal, xliii., 256. 14. Criminal law — Trial for murder — Improper admission of eridencc — Nar trial — Substantial wrong or miscarriage — Criminal Code, s. 1019.] — iBy section 1019 of the " Criminal Code " it is provided that 'no conviction shall be set aside or any new trial directed, although it appears that some evidence was improperly admitted or rejected, or that something not according to law was done at the trial, . . . unless, in the opinion of the court of appeal, some substantial wrong or miscarriage was thereby occasioned on the trial." — Held, re- versing the judgment appealed from (16 B. C. Rep. 9), Davies and Idington, JJ., dis- senting, that where evidence has been im- properly admitted or something not accord- ing to law has been done at the trial which may have operated prejudicially to the ac- cused upon a material issue, although it has not been and cannot be shewn that it did, in fact, so operate, and although the evidence which was properly admitted at the trial warranted the conviction, the court of appeal may order a new trial. Allen v. The King, xliv., 331. 1.5. Expropriation of lands — Estimating compensation — Prospective value — Opin- ion x.] — In expropriations of lands for pub- lic purposes, under the 198th section of the "Railway Act," R. S. C. 190G, c. 37, as authorized by section 15 of the " National Transcontinental RaOway Act." 3 Edw. VII. c. 71, the estimation of compensation to be awarded to the owners of the lands should be made according to the value of the lands to such owners at the date of ex- propriation. The prospective potentialities of the lands should be taken into account, but it is only the existing value of such ad- vantages at' the date of expropriation that falls to be determined. In re Lucas and the Chesterfield Gas and Wa- ter Board ((1909), 1 K. B. 16), and Cedar Rapids Manufacturing and Power Co. v. La- coste (30 Times L. R. 293), followed.— Per Duff, J. — The opinions of witnesses to the effect that certain values would be assigned to expropriated lands upon a comparison of those lands with other lands in the vicinity for which selling prices might be estimated in a vague way cannot be deemed evidence 447 EVIDEXCE. 448 sufficient to establish values for the expropri- ated lands. — (Leave to appeal to the Privy Council was refused, 20th May, 1914). The King v. Trudel, xlix., 501. , 16. Sale cff land — Consideration — iSai- clujmge of properties — Mortgage — Indem- nity to vendor.] — In 1912 D. advanced money to P., who conveyed to him certain properties, in Ottawa, Ont., including one on LeBreton Street. In 1913, P. entered into an agreement with C. to exchange the LeBreton Street property for lots on Lisgar Street, which was carried out by conveyances between C. and D. In his deed C. stated that the consideration was " an exchange of lands and $1.00," and conveyed the lots on Lisgar Street, subject to certain mortgages, the description being followed by the words, '•' the assumption of which mortgages is part of the consideration herein." C. was obliged to pay these mort- gages, and brought suit against D. to re- cover the amount so paid. — Held, affirming the judgment of the Appellate Division (34 Ont. L. R. 580) , that the case was not within the rule of equity whereby the pur- chaser of an equity of redemption may be obliged to indemnify his vendor against lia- bility for the mortgage. Small v. Thompson (28 Can. S. C. E. 219) distinguished.— Held, also, that parol evidence was pro- perly received to shew the relations between P. and D. ; that D. received the conveyance from: C. merely as P.'s nominee, and held it afterwards only as security for his advances to P. ; that he never claimed to be owner and never went into possession except as P.'s agent ; and that he was not a purchaser of the property, but only a mortgagee. Camphell v. Douglas, liv., 28. 17. Reference to " Hansard Debates " — Construction of statute, xxxvi., 42. See Railways. 18. Provincial laws in Canada — Conflict of laws, xxxix., 311. See Evidence. 19. Criminal law — Refusal of reserved case — • Appeal to Supreme Court of Can- ada — Conviction in Yukon Territory — Ad- mission of evidence — Procedure at trial. Labelle v. The King, Gout. Gas. 282. 20. Breach of trust — Accounts — Nova Scotia "Trusts Act " — 2 Edw. VII. c. 13 — Lialility of trustee — N. 8. Order XXXII., r. 3 — Judicial discretion — Statute of Limita- tions, xxxvii., 163. See Teusts. 21. Sale of goods — Set-off — Deitor and creditor — Partnership — Books of account — Practice — New trial — Reducing verdict on appeal. Cam. Gas. 282. See New Trial. 2. Admissions. 22. Contract by municipal corporation — Powers — By-law or resolution — Right of action — Confession of judgment — Evidence — Admissions — Pleading — Estoppel by record — Art. 1245 0. G. — Concurrent find- ings of fact.] — A confession of judgment for a portion of the amount claimed is a judi- cial admission of the plaintiff's right of ac- tion and constitutes complete proof against the party making it. The V. JHudon Cotton Co. V. The Canada Shipping Co. (13 Can. S. C. R. 401) followed; The Great North- West Central Railway Go. v. Gharlebois et al. ([1899] A. C. 114; 26 dan. S. C. E. 221) distinguished. — Upon issues raised as to matters of fact, the court refused to dis- turb the concurrent findings of the courts below. — Judgment appealed from (Q. R. 13 K. B. 19) reversed and judgment at the trial (Q. R. 21 S. C. 241) restored. Citi- zens Light and Power Go. v. The Town of St. Louis, xxxiv., 495. 23. Evidence — Corrupt acts — Admissions — Dominion Elections Act, 1900, s. US,] — Though, unless the commission of the cor- rupt act charged is admitted, it must be judicially established, such admission or ju- dicial determination does not take effect merely from the time at which it is made but relates back to the commission of the act. Cumberland Election Case; Pictou Election Case; North Ga/pe Breton-Victoria Election Case, xxxvi., 542. And see Election Law. 24. Account stated — Admission of liability — Promise to pay — Collateral agreement— Parol evidence.]---On the dissolution of a partnership, the parties signed a statement shewing a certain amount as due to the plaintiff for his share and declaring that "for the sake of peace and quiet and to avoid friction and bother" the plaintiff waived examination of the firm's books and agreed that the amount so stated should be deemed to be the amount payable by the defendants to the plaintiff. — Held, that a promise to pay the amount of the balance so stated to be due should be implied from the admission of liability. — In an action for the amount of the balance, the defendants alleged that the plaintiff had verbally agreed that he would not sue upon the account as stated, and that the document should be treated as merely shewing what would be payable to him upon the collection of out- standing debts owing to the firm. — Held, that as the effect of the alleged collateral agreements was to vary and annul the terms of the written instrument they could not be proved by parol testimony. Jackson v. Drake, Jackson & Helmcken, xxxvii., 315. 25. Life insurance — Policy — Memo, on margin — Want of countersignature — Effect of — Evidence — Admission of a deceased agent against interest of the prinicpal — Secondary evidence — Contradicting evidence of deceased witness at former trial.] — ^A policy of life insurance sued on had in the margin the following printed memo.: "This policy is not valid unless countersigned by agent at . Countersigned this day of Agent." This memo, was not filled up, and the policy was not, in fact, countersigned by the agent. The case was first tried before McDonald C.J., without a jury, and a judgment entered in favour of the plaintiff was affirmed by the Supreme Court of Nova Scotia, but on appeal to the 449 EVIDENCE. 450 Supreme Court of Canada the judgment was set aside and a new trial ordered (10 Can. S. C. R. 92). The second trial was before McDonald, C. J., and a jury, when a judg- ment was entered in favour of the plaintiff on the findings of the jury. Upon appeal, to the Supreme Court of Nova Scotia this judgment was afflrmed, but a further appeal to the Supreme Court of Canada was allowed and a new trial ordered (13 Can. S. C. R. 218). The third trial was before Townshend, J., and a jury, and a judgment was again given for the plaintiff upon the findings of the jury. This judgment was affirmed by the Supreme Court of Nova Scotia, and, on appeal to the Supreme Court of Canada, Held, Gwynne, J., dissenting, that the judgment of the Supreme Court of Nova Scotia should 'be afiirmed and the appeal dismissed with costs. — Held, per Strong J., that nothing but strictly legal evidence having been submitted to the jury, and the whole question being one of fact, the third verdict in favour of the plaintiff should be sustained.— HeW, per Gwynne J., that evidence by a vvitness of an admission of a deceased agent of the company that he had received a premium upon the policy in question, when the agent had in his evi- dence at the first trial denied that he had received the said premium, and the witness at the same trial had not contradicted him, <;ould not be received in evidence as an ad- mission of the defendants, and had no bind- ing effect upon them. Confederation Life Association of Canada v. O'Donnell, (xvi., 717) Cam, Cas. 154. 26. Actio negatoria xervitutis — Boundary ditch — Estoppel — Waiver of objections. Breton v. Oonthier dit Bernard, Coutl Cas. 350. 27. Evidence by parol — Commencement of proof in writing — Art. 1S3S G. C. — Adduc- tion of evidence — Practice — Objections to testimony — Rule of public order, xxxv., 14. See Evidence. 28. Doweress — Title to land — Prescrip- tion — Statute of Limitations — Heirs at law — Parol evidence — Will^Residuary devise. Cam. Cas., 338. See Title to Land. 29. Title to land — Lease for years — Pos- session -by sub-tenant — Purchase at sheriffs sale — Adverse occupatioxi — Conveyance of rights required — Compromise — Waiver — Estoppel, Cout. Cas. 158. See Title to Land. 3. On Appeal. 30. Evidence — Provincial laws in Canada — Judicial notice — Conflict of laws.] — As an appellate tribunal for the Dominion of Can- ada, the Supreme Court of Canada requires no evidence of the laws in force in any of the provinces or territories of Canada. It is bound to take judicial notice of the sta- tutory or_ other laws prevailing in every pro- vince or territory in Canada, eiven where tbey may not have been proved in the courts s.c.D. — 15 below, or although the opinion of the judges of the Supreme Court of Canada may differ from the evidence adduced upon those points in the courts below. Cooper v. Cooper (13 App. Cas. 88) followed. (Note: Cf. R. S. C. (1906) ch. 145, sec. 17.) Logan v. Lee., xxxix., 311. And see Negligence. 31. Practice — Pleading — B. C. Rule 168 — New points .raised on appeal — Condition precedent — Construction of statute — Dam- ages — Waiver — Injunction, xxxv., 309. See Phactice. 32. Controverted election — Trial of peti- tion — Corrupt acts at former election — Agency — -System of corruption, xxxviii., 604. See Evidence. 33. Operation of railway ■ — Unnecessary combustibles left on right of way — "Railway Act," (1903) ss. 118 (j) and 239— R. S. C. (1906) c. 31, ss. 151 (j) and Wl—Damages by fire — Point of origin — Charge by judge — Finding of jury — jVew trial — Practice — New evidence on appeal — Supreme Court Act, ss. 51 and 73, xxxix., 390. See Railways. 34. Railways — "British Columbia Rail- way Act" — Fire on right-of-way — Combus- tible matter on berm — Origin of fire — Dam- age to adjoining property — Negligence — Practice — New points raised on appeal, xliii., 355. See Railways. 4. COEROBOBATION. 35. Action. by executors — Witness — Evi- dence — Corroboration — R. S. O. (189T) c. 73, s. 10.] — In an action by executors to re- cover money due from C. to the testator it was proved that the latter when ill in a hospital had sold a farm to C, and $1,000 of the purchase money was deposited in a bank to testator's credit; that subsequently C. withdrew this money on an order from testator who died some weeks after, when none was found on his person nor any re- cord of its having been received by him. C. admitted iaving drawn out the money bijt swore that he had paid it over to testator but no other evidence of the kind was given of such payment. — Held, reversing the judg- ment of the Court of Appeal, that a primd facte case having been made out against C and his evidence not having been corro- borated as required by R. S. O. (1897) ct. 73, sec. 10, the executors were entitled to judgment. Thompson v. Coulter, xxxiv. 261. *' 36. Execution of will — Promoter — Evi- dence — Testamentary capacity.] — Where the promoter of, and a residuary legatee under a will executed two days before the testator's death and attacked by his widow and a residuary legatee under a former will the devise to the latter of whom was re- voked, failed to furnish evidence to corro- borate his own testimony that the will was 451 EVIDENCE. 453 read over to the testator who seemed to understand what he was doing and there was a doubt under all the evidence of his testamentary capacity, the will was set aside. — Girouard J. dissenting, held that the evidence was sufficient to establish the will as expressing the wishes of the testator. — Per Davies J. The will should stand except the portion disposing of the residue of the estate, the devise of which in the former will should be admited to probate with it. British and Foreign Bible Society -v. Tupper, xxxvii., 100. 5. Experts. 37. Life insurance — Misrepresentation — Findings of jury — Evidence of experts — Classes of opinions. Mutual Reserve Fund Life Assn. v. Dillon, Cout. Cas. 339. 6. Findings of Fact. 38. Negligence — Electric wire — Trespasser — Contributory negligence — New trial.] — Ahearn & Soper bad a contract to illumin- ate certain buildings for the visit of the Duke of York to Ottawa and obtained power from the Ottawa Electric Co. For the pur- poses of the contract, wires were strung on a telegraph pole and fastened with tie-wires the ends of which were uninsulated. R. an employee of the Ottawa Electric Co., was sent by the latter to place a transformer on the same pole and, in doing so, his bands touched the ends of the tie-wire by which he received a shock and fell to the ground, being seriously injured. To an action for damages for such injury A. & S. pleaded that R. had no right to be on the poic and was a tres- passer, and on the trial their counsel urged that the work he was doing was connected with the lighting of a building in the city. The Court of Appeal held that this defence was established and dismissed the action. — Held, reversing the judgment appealed from (6 Ont. L. R. 619). that the counsel's ad- dress did not indicate that the building re- ferred to was not one of those to be illumin- ated under the contract and the evidence did not shew that; R. was not engaged in the or- dinary business of his employers and the case should be re-tried, the jury having failed to agree at the trial. — ^A rule of the O. E. Co. directed every employee whose work was near apparatus carrying dangerous currents to wear rubber gloves which would be fur- nished on application. R. was not wearing such gloves when he was hurt. — Held, that the mere fact of the absence of gloves was not such negligence on R.'s part as would warrant the case being withdrawn from the jury ; that, as to A. & S'., K. was not bound by said rules ; and that though his failure to take such precaution was evidence of negligence he had a right to have it left to the jury and considered in connection with other facts in the case. Randall v. Ahearn & Soper, xxxiv., 698. 39. Evidence — Verdict — New trial — Life insurance — Conditions of contract — Misre- presentation — Non-disclosure — Accident poli- cies — Warranties — Words and terms — Rule of interpretation.'] — Unless the evi- dence so strongly predominates against the verdict as to lead to the conclusion that the jury have either wilfully disregarded the evidence or failed to understand or appre- ciate it, a new trial ought not to be granted. — ^Ou an application for life insurance, the applicant stated, in reply to questions as to insurances on his life then in force, that he carried policies in several life insurance companies named, but did not mention two policies which he had in accident insurance companies insuring him against death or in- jury from accidents. The questions so an- swered did not specially refer to accident insurance, but the policy provided thaf the statements in the application should consti- tute warranties and form part of the con- tract. — Held, affirming the judgment appeal- ed from, the Chief Justice dissenting, that "accident insurance" is not insurance of the character embraced in the term "insurance on life" contained in the application and, consequently, that the questions had been sufficiently and truthfully answered accord- ing to the natural- and ordinary meaning of the words used, and, even if the words used were capable of Interpretation as having another or different meaning then the lan- guage was ambiguous and the construction as to its meaning must be against the com- pany by which the questions were framed. Confederation Life Association v. MiUer (14 Can. S. C. R. 330) followed. Mutual Reserve Life Insurance Co. vi. Foster. (20 Times L. R. 715) referred to. Metro- politan Life Ins. Co. -v. Montreal Coal and Towing Co., xxxv., 266. 40. Will — Execution — Evidence — Ap- peal — Findings in courts below.] — In pro- ceedings for probate of a will, the solicitor who drew it testified that it was signed by the testatrix when the subscribing witnesses were absent ; that on their arrival he asked the testatrix if the signature to it was hers and if she wished the two persons present to witness it and she answered "yes" ; each of the witnesses acknowledged his signature to the will but swore that he had not heard such question asked and answered. The Judge of Probate held that the will was not properly executed and his decision was af- firmed by the Supreme Court of Nova Scotia. Heidi affirming the judgment ap- pealed from (36 N. S. Rep. 482) that two courts having pronounced against the valid- ity of the will such decision would not be reversed by a second court of appeal. (Leave to appeal to Privy Council refused, 18th July, 1905.) McNeU v. Cullen, xxxv., 510. 41. Negligence — -Ferry wharf — Dangerous way — Precautions for preventing a^cidenis — Evidence — Findings of jury — Non-suit.] — A passenger, arriving on the pontoon wharf as a ferry boat was swinging out and was a few feet away from the wharf with the gangways withdrawn, attempted to jump aboard over the stern bulwarks and was drowned. In an action by ber representa- tives to recover damages from the ferry company on account of negligence in failing to provide proper means to prevent acci- dents at their wharf, the jury found that the drowning was caused by tte fault of the company "in not having proper gates at the gangway openings leading from the pontoon to the boat," and that deceased was ber- 453 EVIDENCE. 454 self negligent "by her imprudence in at- tempting to board the boat after the gang- way had been raised and the boat was swinging preparatory to leaving the pon- toon," but that she "was not then aware that the boat had left the wharf." — Eeld, reversing the judgment appealed from (Gir- ouard J. dissenting on a different apprecia- tion of the facts), that, as there was no proof of any negligence on the part of the company which proximately and effectively contributed to the accident but, on the con- trary, it appeared that the sole, direct, prox- imate and effective cause of the accident was the wilful and rash act of the deceased in atteijipting to jump aboard the ferry boat over the bulwarks, after the gangways had been withdrawn and the boat had got under way, the company could not be held respon- sible in damages. Tooke v. Bergeron (27 Can. S. C. R. 567) and The George Matthews Go. v. Bouchard (28 Can. S. C. R. 585) followed. Quebec and Levis Ferry Co. V. Jess., XXXV., 693. 42. Negligence — Railway company — Ex- cessive speed — Fencing — Railway Act, 18S8, 3S. 194, 197 — 55 a 56 Vict. c. 27, s. 6 (D.) — Reasonable inferences.] — The provisions of 55 & 56 Vict. ch. 27, see. 6, amending sec. 197 of The Railway Act, 1888, and re- quiring at every public road crossing at road level of the railway the fences on both sides of the crossing and of the track to be turned in to the cattle guards, applies to all public road crossings and not to those in townships only as is the ease of the fencing prescribed by sec. 194 of The Railway Act, 1888. Grand Trunk Railway Co. v. McKay (34 Can. S. C. R. 81) followed.— Three persons were near a public road crossing when a freight train passed, after which they attempted to pass over the track and were struck by a passenger train coming from the direction opposite to that of the freight train and killed. The passenger train was running at the rate of forty-five miles an hour, and it was snowing slightly at the time. On the trial of actions under "Lord Campbell's Act," against the railway com- pany, the jury found that the death of the parties was due to negligence "in violating the statute by running at an excessive rate of speed" and that deceased were not guilty of contributory negligence. A verdict for the plaintiff in each case was maintained by the Court of Appeal. — Held, that the rail- way company was liable ; that the deceased had a right to cross the track and there was no evidence of want of care on their part and the same could not be presumed, and, though there may not have been precise proof that the negligence of the company was the direct cause of the accident, the jury could reasonably infer it from the facts proved and their finding was justified. McArthur v. Dominion Cartridge Go. ([1905] A. C. 72) followed: Wakelin v. London & South Western Railway Co. (12 App. Cas. 41) distinguished. — Held, also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care ; that owing to the snowstorm and the escap- ing steam and noise of the freight train they might well have failed to see the head- lignt or hear the approach of the passenger ^am if they had looked and listened. Grand rrunk Railway Go. v. Hainer; Grand Trunk Railway Co. v. Hughes; Grand Trunk Rail- way Go. V. Bready, xxxvi., 180. 43. Promissory note — Illegal consideration — Smuggling transaction — Burden of proof -^Findings of trial judge.] — The trial judge dismissed the action on the ground that the original note, of which those sued upon were renewals, was given without consideration or in connection with smuggling transactions. He considered the evidence unsatisfactory as the plaintiff did not produce the books of account showing how the consideration was made up and that there was evidence to support the plea of illegality. Upon equal division of opinion among the judges, on an appeal (39 N. S. Rep. 65), his judgment stood affirmed, and a further appeal to the Supreme Court of Canada was dismissed. Ross V. Gannon, xxxix., 675. 44. Negligence — Dangerous works — Pro- tection of employees — Evidence — Questions for jury — Judge's charge — Findings of fact -—Inferences.] — An experienced employee of the defendants was killed by an explo.sion of illuminating gas while discharging his duties in the meter-room at the defendants' gas works. It was shewn that there might possibly have been an escape of gas from the controllers or other fixtures in the room or in the blow-room adjoining it ; that there had been no special precautions by the de- fendants to detect any such escape of gas that might occasionally happen, and that the meter-room had always been and, at the time of the accident, was lighted by means of open gas jets. There was no exact proof of any particular fault, attributable to the defendants, which could have been the whole cause of the explosion, and its origin and course were not explained. In an action for damages by the widow and representa- tives of deceased, the jury found that the explosion had resulted from the fault and imprudence of the defendants in lighting the meter-room by open gas jets, and contribu- tory negligence on the part of deceased was negatived. — HeM, affirming the judgment ap- pealed from, (Q. R. 16 K. B. 246) Davies and Maclennan, 33., dissenting, that, in the circumstances, the jury were justified in nndmg that there had been such negligence and imprudence on the part of the defend- ants, m such use of open gas jets, as would render them responsible for the injury com- plained of. Montreal Light, Heat and Power Co. V. Regan, xl., 580. 45. Privilege — Notary — Jury trial— Prac- tice — Charge to jury — Objections after ver- dict— New trial— Misdirection — Discretion. ] — H., to qualify as candidate in a municipal election procured from a friend a deed of land giving him a contre-lettre under which he collected the revenues. Having sworn that So ^^ owner of real estate to the value of $2,000 (that described in the deed), B In his newspaper accused him of perjury and he took action against B. for libel. On the trial the deed to H. was produced, and the existence of the contre-lettre proved, but the notary having the custody of both docu- ments refused to produce the latter, claim- ing privilege^ on the ground that it was a confidential document. The trial judge maintained this claim, but oral evidence was admitted proving to some extent what 455 EVIDENCE. 456 the contre-lettre contained. A verdict hav- ing been given in favour of H. — Seld, that the trial judge erred in ruling that the notary was not obliged to produce the con- tre-tettre, as it was impossible, without its production to determine what, if any, limi- tations it placed upon the deed, and there should be a new trial. — ^B. in his newspaper article also accused H. of halving been drunk during the election, and the judge. In charg- ing the jury, said, "Tou should consider the case as if the charge of drunkenness had been made against yourselves, your brother or your friend." — Held, that this was calcu- lated to mislead the jury and was also a reason for granting a new trial. — If objec- tion to one or more portions of the judge's charge is not presented until after the jury have rendered their verdict, the losing party cannot demand a new trial as of right, but in such case an appellate court, to prevent a miscarriage of justice, may order a new trial as a matter of discretion. Bwrthe v. Iluard, xlii., 406. 46. Rejection of evidence — Memorandum hy ivitness — Withdrawing case from jury — New trial.'i — ^^On the trial of a case it is permissible for a witness to consult a copy of a memorandum respecting circumstances attending the occurrence of an adcident, which was made by himself at the time, in order to refresh his memory. The refusal of the trial judge to permit him to do so is ground for ordering a new trial. — The trial judge is not justified in withdrawing a case from the jury on the ground that the evidence establishes contributory negli- gence on the part 6t a ' plaintiff unless no other conclusion can be drawn from it. Daynes v. British Columiia Electric Rviay. Co., xlix., 518. And see Practice and Prockdtjbb. 47. Marine insurance — Abandonm,ent — Repairs — Boston clause — Findings of jury — New trial — Practice — Evidence taken 'by commission — Judicial discretion. Ins. Go. of North America v. McLeod, Cout. Cas. 214. 48. Life insurance — Misrepresentations — Findings of jury — Evidence of experts — Classes of opinions. Mutual Reserve Fund Life Assn. v. Dillon, Cout. Cas. 339. 49. Contract hy municipal corporation — Powers — By-law or resolution — Right of action — Confession of judgment — Evidence — Admissions^— Pleading — Estoppel hy record — Art. 12^5 G. C. — Concurrent findings of fact, xxxiv., 495. See Evidence. 50. Dangerous way, works, etc. — Negli- gence — Master and servant — Workmen's Compensation for Injuries Act — Findings of jury — Evidence, xxxiv., 710. See Negligence. 51. Will — Testamentary capacity — Art. 831 C. C. — Marriage contract — Duress, xxx;v., 477. See Marriage Contract. See Will. 52. New trial — Contradictory evidence — Wilful trespass — Rule in assessing damages — Practice — Adding party — Reversal on appeal, xxxvi., 152. See Pbactioe. 53. Negligence — Findings of jury — Prac- tice — Operation of railway — ','The Railway Act" 51 Vict. c. 29, xxxvii., 1. See Negligence. 54. Jury trial — Judge's charge — Practical withdrawal of case — Evidence — New trial xxxviii., 165. ' See New Trial. 55. Findings of jury — Questions of fact — Duty of appellate court, xxxix., 336. See Practice. 56. Operation of railway — Unnecessary comhustihles left on right of way — "Railway Act, 1903" ss. 118j and 229— Findings of jury — Darnagea hy fire — Charge of judge — New evidence on appeal — New trial Practice — Supreme Court Act, ss. 51. IS xxxix., 390. See Railways. 57. Employer and employee — Improper appliances — Negligence — Proximate cause — Findings of jury, xl., 396. See Negligence. 58. Operation of railway — Level crossing — Negligence — Statutory signals — Findings against weight of evidence — New trial — Practice, 8 Can. Ry. Cas. 61. See Negligence. 59. Life insurance — Policy — Memo, on margin — Want of countersignature — Admis- sion of deceased agent against interest of principal — Secondary evidence — Contradict- ing deceased witness. Cam. Cas. 154. See Evidence. 60. Separate partnerships — Different part- ners — SoTOe style of firm — Memher mak- ing note in firm name — Liability to bond fide holder. Cam. Cas. 200. See Partnership. 61. Ships and shipping — Material used in construction — Sale of goods — Contract — Principal and agent — Misrepresentations — Mistake — Conversion — Trover — Mis- direction — New trial — Ship's husband — Pledging credit of owners — Necessary out- fitting at home port, Cout. Cas. 131. See Ships and Shipping. 62. Operation of tramway — Negligence — Findings of jury, Cout. Cas. 349. See Practice. 63. Construction of contract — Findings of trial judge — Appreciation of evidence- Reversal on appeal, xli., 134. See Contract. 64. Privilege — Notary — Jury trial — Practice — Charge to jury — Objections after verdict — New trial — Misdirection — Discre- tion. Barthe v. Iluard, xlii., 406. See Practice. 457 EVIDENCE. 458 65. Negligence — Operation of railway — Fatal injuries — Statutory signals — Highway crossing — Absence of eye-witness — Reason- able inference — Probabilities — Findings of jury, xlv., 380. See Vkedict. 66. Promissory note — Signature in blank — Discount — Principal and agent — Condi- tion as to use of note — Bond, fide holder — "Bills of Exchange Act." S.O., 1906, c. 199, ss. 31, SS — Findings of trial' court, xlv., 401. See Bills and Notes. 67. Criminal law — Indictment for murder — Trial — Criminal intent — Provocation — "Heat of passion" — Charge to jury — Mis- direction — Reducing charge to manslaughter — New trial— "Suhstantial wrong" — Crimi- nal Code, ss. 261, 1019 — Appealr— Questions to be reviewed, xlvii., 1. See Criminal Law. 68. Findings of fact — Inference by jury — Determining cause of accident— Evidence to support verdict — Practice, xlix., 80. See PbACTIOE and PEOCBDtTEE. 69. Negligence — Employer's liability — Ship labourer — Disregard of rules — "Acci- dent in course of employment" — Action - — Claim by dependents — Findings of jury — Art. 1054 C.C, xlix., 136. See Negligence. , 70. Sale of lands — Agreement for re-sale — Novation — Rescission — Specific perform- ance — Defence to action — Practice — Sta- tute of Frauds — Principal and agent — Agent purchasing — Disclosure — Findings of fact, xlix. See SPECinc Peefoemance. 1906, c. 37, s. 26Ji — Construction of statute —Vis major. Plelan v. O. T. P., li., 113. See Railwats. 75. Libel — Business reputation — Action by incorporated company — Truth of alleged facts — Fair comment — Justification — Public interest — Qualified privilege — Charge to jury — Misdirection — Misleading statements ■ — Practice — Special damages — New trial. Price V. Chicoutimi, li., 179. See Libel. 76. Negligence — Defective system — Injury to employee — Verdict — Practice — Exception to judge's charge — New points on appeal- — New trial. Crevelling v. Can. Bridge Co., li., 216. See Practice and Prooeduee. 77. Criminal case — Proceedings before grand jvry. Veronneau v. The King, liv., 7. See Cbiminal Law. 7. Malice. 78. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — Presumption of malice — Right of action, xxxix., 340. See Slander of Title. 79. Malicious prosecution — Reasonable and probable cause — Bona fide belief in guilt — Burden of proof — Right of action for damages — Art. 1053 C. C. ■ — Pleading and practice, xl., 128. See Evidence. 71. Construction contract — Sub-contract — Dangerous premises — Servant or agent — Building materials — Duty of principal con- tractor — Injury to invitee — Responsibility for damages — Findings of jury, xlix., 632. See Negligence. 72. Railways — Operation — Transfer of cars — Interswitching — Negligent coupling — Duty of train crew — Scope of employment — Employer's liability — Jury — Findings of fact. a. T. P. B. R. Co. v. Pickering, 1., 393. See Railways. _ 73. Negligence — Dangerous works — Defec- tive system — Careless management — Fault of fellow servant — Efficient superintendence — Employer's duty — Action— Liability at com- mon law — "B.C. Employers' LiabiUty Act" — Pleading — Practice — Charge to jury — New trial. BergkUnt v. West. Can. Power Co., 1., 39. See Negligence. 74. Operation of railway — Equipment — Coupling apparatus — Duty to provide and maintain — Protection of employee — Inspec- tion— -"Inevitable accident" — Negligence — Findings of jury — Common employment — Conflict of laws — "Railway Act," R.S.C., 8. Onus of Proof. 80. Arbitration and award — Settjng aside award — Partiality or unfairness — Onus of proof.']- — ^Where it does not appear that an arbitrator is in a position with regard to the parties or the matter in dispute such as might cast suspicion upon his honour and impartiality there must be proof of actual partiality or unfairness in order to justify the setting aside of the award. Doberer v. Megaw, xxxiv., 125. And see Aebiteation and Award. 81, 'Will — Promoter — Subsequent conduct of testator — Residuary devise — Trust.] — In proceedings for probate by the executors of a will which was opposed on the groun'' that it was prepared by one of the execu- tors who was also a beneficiary, there was evidence, though contradictory, that before the will was executed it was read over to the testator who seemed to understand its provisions. — Held, Idington, J., dissenting, that such evidence and the facts that the testator lived for several years after it was executed and on several occasions during that time spoke of having made his will and never revoked or altered it, satisfied the onus, if it existed, on the executor to satisfy the court that the testator knew and approved of its provisions. — Held, also, that 459 EVIDENCE. 460 where the testator's estate was worth some $50,000 and he had no children it was doubt- ful if a bequest to the propounder, his bro- ther, of $1,000 was such a substantial bene- fit that it would give rise to the onus con- tended for by those opposing the will. Con- nell V. Gonnell, xxxvii.,. 404. 82. Railways ■ — ■ Negligence — Defective construction of roadrbed — Dangerous way — Vis major— Onus of proof — Latent defect.} — The road-bed of appellants' railway was constructed, in 1893, at a place where it followed a curve round the side of a hill, a cutting being made into the slope and an embankment formed to carry the rails, the grade being one and one half per cent, or 78.2 feet to the mile. The whole of the embankment was built on the natural sur- face, which consisted, as afterwards dis- covered, of a layer of sandy loam of three or four feet in depth resting upon day sub- soil. No borings or other examinations were made in order to ascertain the nature of the subsoil and the road-bed remained for a number of years without shewing any subsidence except such as was considered to be due to natural causes and required only occasional repairs ; the necessity for such repairs had become more frequent, how- ever, for a couple of months immediately prior to the accident which occasioned the injury complained of, water, coming either from the berm-diteh, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, liibricated the surface of the clay and, finally, caused the entire embankment and sandy layer to slide away about the time a train was ap- proaching, on the evening of 20th Septem- ber, 1904. The train was derailed and wrecked and the engine-driver was killed. In an action by his widow for the recovery of damages : Seld, that in constructing the road-bed, without sufficient examination, up- on treacherous soil and failing to maintain it in a safe and proper condition, the rail- way company was, primd facie, guUty of negligence which cast upon them the onus of shewing that the accident was due to some uudiscoverable cause ; that this onus was not discharged by the evidence adduced from which inferences merely could be drawn and which failed to negative the possibility of the accident having been occasioned by other causes which might have been fore- seen and guarded against, and that, con- sequently, the company was liable in dam- ages. Judgment appealed from affirmed, fol- lowing The Great Western Railway Co. of Canada v. Braid (1 Moo. P. C. (N. S.) 101). Quehec and Lake St. John Ry. Co. T. Julien, xxxvii., 632. 83. Negligence — Electrical installations — Cause of fire — Defective transformer — Im- proper installations ■ — Onus of proof.] — In an action to recover the amount of a policy of fire insurance paid by the plaintiffs upon the destruction of the premises insured by fire caused, as alleged, through the defective condition of a transformer of the defendant company, whereby a dangerous current of electricity was allowed to enter the insured building, the evidence tailed to shew conclu- sively that the transformi-i- was out of order previous to the occurrence of the fire, and at the same time it appeared that the wiring of the building- may have been defective. — Held, aflirming the judgment appealed from, that the onus of proof upon the plaintiffs had not been satisfied and that they could not recaver. Abrath v. The North Eastern Railway Co. (11 Q. B. D. 440) referred to. Guardian Fire and Life Assurance Co. v. Quebec Railway, Light and Power Co., xxxvii., 676. 84. Title to land— Plan of survey^Evi- dence — Onus of proof — Findings of jury — Error — New trial.] — Where it appeared that in directing the jury, at the trial, the judge attached undue importance to the effect of a plan of survey referred to in a junior grant as against a much older plan upon which the original grants of the lands in dispute depended, and that the findings were not based upon evidence sufficient in law to shift the onus of proof from the plain- tiff and were, likewise, insufficient for the taking of accounts in respect to trespass and conversion of minerals complained of: Held, affirming the order for a new trial made by the judgment appealed from (1 East. L. R. 293), that, in the absence of evidence of error therein, the older grants and plan must govern the rights of the parties. Bartlett v. Nova Scotia Steel Co., xxxviii., 336. 85. Revocation of will — Testamentary capacity — Findings of fact — Practice — Im- proper suggestion — Undue influence ■ — Cap- tation — Bounty taken by promoter — Fraudu- lent representations — Evidence — Onus of proof.]; — While testator was suffering from a wasting disease of which he died shortly afterwards, the defendant, his brother, took advantage of his weakness of mind and secretly obtained the execution of a will, in which he was made the principal benefi- ciary, by fraudulently suggesting and caus- ing the testator to believe that his malady was caused and aggravated by the careless- ness and want of skill' of his wife in the preparation of his food. The testator and his wife had lived together in harmony for a number of years, and shortly after their marriage, had made wills by which each of them, respectively, had constituted the other universal resid\iary legatee and the testator's former will, so made, was revoked by the will propounded by the defendant. — Held, that, as the promoter of the will, by which he took a bounty, had failed to discharge the onus of proof cast upon him to shew that the testator had acted freely and without undue influence in the revocation of the former will, the second will was invalid and should be set aside. Mayrand v. Dussault, xxxviii., 460. And see Will. 86. Promissory note — Fraud in procuring —Discount — Good faith — Onus of proof.] — L. and others signed promissory notes each for the amount of ten shares in a company formed to manufacture rotary engines under an invention of the payee who fraudulently misrepresented to them the prospects and intentions of such company. At the same time each maker signed an application for ten shares. The payee and T., the assignee of his patent of invention, induced W. to discount these notes and received a portion of the proceeds, part being retained by W. in payment of debts due him from these two parties. On the trial of actions by W. on 461 EVIDENCE. 462 the notes the evidence of T. who had ab- sconded, was taken under commission and be swore that the form of application signed by the respective defendants had been shewn to W. before the notes were discounted. W. denied this and swore that he had been told that the notes were given in payment of stock held by the payee. — Held, that the evidence of W., on whom the onus of proof rested could not be accepted ; that the whole testiraonj and attendant circumstances shewed that W. suspected that the proceeds of the notes belonged to the company ; and, having discounted them without inquiry as to the right of the payee and T. to 'receive these proceeds, he was not in good faith and could not recover. Lockhart v. Wilson, xxxix., 541. 87. Malicious prosecution — Reasonable and probable cause — BonA fide belief in guilt ^-Burden of proof — Right of action for dam- ages — Art. 105S C. G. — Pleading and prac- tice.] — An action for damages fpr malicious prosecution will not lie where it appears that the circumstances under which the in- formation was laid were such that the party prosecuting entertained a reasonable bond fide belief, based upon full conviction found- ed upon reasonable grounds, that the accused was guilty of the offence charged. Abrath T. North Eastern Railway Go. (11 App. Oas. 247) and Com v. English, Scottish and Aus- tralian Bank ((1905) A. C. 168) referred to. — Semble, that, in such cases, th« rule as to the burden of proof in the Province of Quebec is the same as that under the law of England, and the plaintiff is obliged to allege and prove that the prosecutor acted with malicious intentions, or, at least, with indiscretion or reprehensible want of con- sideration. Sharpe v. Willis (Q. R. 29 S. C. 14; 11 Rev. de Jur. 538) and Durocher V. Bradford (13 R. L. (N. S.) 73) dis- approved. Judgment appealed from (Q. R. 16 K. B. 333) affirmed. H^i' w. Dixville Butter and Gheese Assoc'n., xl, 128. 88. Negligence — Master and servant — Duty of employee — Insulation of electric wires — Onus of proof.] — An electric line- foreman in the company's employ met his death from contact with imperfectly insulat- ed live wires while at work in proximity to them in the power-house. The evidence left some doubt whether the duties of deceased included the inspection and care of the wires both inside and outside of the power-house, or whether his engagement was to perform the duties in question in respect only to the wires outside the power-house walls. — Held, that the onus of proof as to the point in dis- pute was on the defendants and, suet onus not having been satisfied, they were liable in damages.' — ^Judgment appealed from af- firmed, Davies, J., dissenting on a different view of the evidence, and holding that the duties of deceased included the inspection and care of the interior wiring. Quebec Ry., Light and Power Go. v. Fortin, xl., 181. 89. Pleading — Purchase for value without notice — Onus — Evidence — Affirmative and negative evidence — Weight of evidence.] — The plea of purchase for value without notice must be proved in its entirety by the party offering it; it is not incumbent on the opposite party to prove notice after the pur- chase for value is established. Where a conversation over the telephone was relied on as proof of notice the efcidence of the party asserting that it took place and giv- ing the substance of it in aetail, must pi-e- vail over that of the other party who states only that he does not recollect it. Union Bank of Halifax v. Indian and General In- vestment Trust, xl., 510. _ 90. Will — Testamentary capacity — Gapta- tion — Suggestion — Undue influence — Inter- diction — Onus of proof.] — The existence of circumstances which might raise suspicion that the execution of a will was procured by captation, improper suggestions or undue influence on the part of those promoting it is not a sufficient ground to justify an ap- pellate court in interfering with the con- current findings of the courts below as to the validity of the will. — ^Judgment appeal- ed from (Q.R. 17 K.B. 215) affirmed, Girouard anl Maclennan. JJ., dissenting. Laramie v. Perron, xli., 391. 91. Evidence — Burden of proof — Sale of bank stock — Allotment to shareholders — Shares refused or relinquished — Sale to pub- lic—Authority— R. S. C. U906] 0. 29, s. SJ,.] — M. was sued by a bank on "a promissory note alleged to have been given in payment for a portion of an issue of increased stock. He pleaded want of consideration and non- reeeipt of the stock. On the trial evidence was given of a resolution by the bank direc- tors authorizing the allotment of the new issue to the then shareholders of whom M was not one, and counsel for the bank ad- mitted that there was no resolution allotting U to anybody else. A verdict in favour of the bank was set aside by the Court of Appeal.— fl-eirf, Idington and Duff, JJ. dis- sniiting,- that the onus was on M. to prove that the stock was issued to the public with- out authority and such onus was not satis- ftecl— ifeW, per Idington and Duff, JJ., that .■!uch onus was originally on M. but the evi- dence produced and the said admission of counsel had shifted it to the bank, which did not furnish the requisite proof. Sovereign Hank V. Mclntyre, xliv., 157. 92. Onus — Railway company — \egli- ^^^^^^~ -Ba!cem"t>e speed— '• Railway Act" s 275—8 & 9 Edw. VII. p. m, s IS 1— Bv 8 t ? .^•^^.- J"- '^- '^- '■ 13. amending s' fji> ot the Railway Act. ' no railway train shall pass over a highway crossing at rail level in any thickly peopled portion of any city, town or village at a greater speed than ten miles an hour," unless such crossing is constructed and protected according to spe- cial orders and regulations of the Railway Committee or Board of Railway Commis- sioners or permission is given by the Board In an action against a railway company for damages on account of injuries received through a train passing over such a crossing at a greater speed than ten miles an hour -Held, reversing the judgment of the Ap- pellate Division (29 Out. I^ R. 247), that the onus was on the company of proving that the conditions existed which, under the pro- visions of said section, exempted them from the necessity of limiting the speed of their tram to ten miles an hour or that they had the permission of the Board to exceed that limit, and ii.': they had not satisged that onus 463 EVIDENCE. 464 the plaintiff's verdict should stand. — Sub- section 4, of s. 13, prohibits trains running " over any highway crossing " at more than 10 miles an hour, if at such crossing an accident has happened subsequent to 1st January, 1900, " by a moving train causing bodily injury," etc., "unless and until" it is protected to the satisfaction of the Board. ■ — Per Duff and Brodeur, JJ. — ^The appel- lant's action could also be maintained on the ground that the prohibition of sub-sec- tion 4 applies to the crossing in question. The Qrand Trunk RaAlway Co. v. McKay (34 Can. S. C. R. 81), distinguished. Bell V. Grand Trunk Railway Co., xlviii., 561. 93. Negligence — Electrical installations — Necessary protection of employees — Onus of proof — Voluntary exposure to damjot . Shawinigan Gartide Co. v. St. Onge, xxxvii., 688. 94. Action by executors — Witness — Cor- roboration of evidence — R. S. 0. 1897, i-. 73, s. 10, xxxlv., 261. See Evidence. 95. Adinissions — Corrupt acts — Domin- ion Elections Act, 1900, s. 113, xxxvi., 542. See Evidence. 96. Admiralty law — Navigation — Nar- row channel — Rule of the road — Tiook-out — Meeting ships — Collision — Special rule of port — Sorel harbour regulations — Lights and signals — Negligence — Evidence — Dam- ages — Practice — Improper comments in factum, xxxvi., 564. See Admiralty Law. 97. Fixtures — Lessor and lessee — Build- ings placed on leased land — Evidence — Onus of proof — Landlord and tenant, xliii., 334. See Landlord and Tenant. 98. Timber license — Crown lands in British Columbia — Real estate — Personalty — Contract — Sale — Exchange — iConsid- eration — Payment in joint stock shares — Vendor's lien — Onus of proof — Pleading end practice, xliv., 458. See Lien. 99. Negligence — Carriers — Operation of railway — Defective system — Ch'atuitous pas- senger — Free pass — Limitation of liability — Employer and employee — Fellow servant — Onus of proof, xlv., 263. See Negligence. 100. Malicious prosecution — Probable cause — Onus of proof — Honest belief — Prac- tice — Questions for jury, xlvii., 393. See Malicious Prosecution. 101. Execution of will — Testamentary capacity — Undue influence — Captation — Approval by testatrix — Beneficiary pro- pounding will — Onus of proof, xlix., 305. See Will. 102. Trespass — Cutting timber — Crown grant — Conflicting claims — Priority of title. Hirtle v. Boehner, 1., 264. See Trespass. 9. Presumptions. 103. Highway — Road allowance — Re- servations in township survey — General in- structions — Model plan.'] — Where the Crown surveyor returned the plan of original sur- vey returned of a township without indicat- ing reservations for road allowances upon the boundaries of the township and his field notes appeared to the court to support the view that no such allowances had been made by him : — Held, that the general instruc- tions and model plan for similar surveys did not afford a presumption sufficiently strong for the inference that there was an intention upon the part of the Crown to establish such road allowance. Tanner v. Bissell (21 U. C. Q. B. 553), and Boley v. McLean (41 U. C. Q. B. 260) approved. (Leave to appeal to Privy Council refused.) Township of East Hawkesbury v. Township of Lochiel, xxxiv., 513. 104. Controverted election — Personal cor- ruption — Inferences.] — Respondent, the night before the election, took a sum of over $4,000 and divided it into several parcels of sums ranging from $250 to $1,500. He then, after midnight, visited' all his com- mittee rooms and gave to the chairman of each committee, personally and secretly, one of such parcels. His financial agent had no knowledge of this distribution and no evi- dence was produced of the application of the money to legitimate objects. — Held, that the inference was irresistible, that the money was intended for corruption of the electors and respondent was properly held guilty of personal corruption. St. Ann's Election Case, xxxvii., 563. See Election Law. 105. Customs Act — Importation of cattle — Smuggling — Clandestinely introducing cattle into Canada — Claim for return of de- posit made to secure release of cattle seized — Evidence.] — The suppliants claimed the return of money deposited by them to ob- tain the release of cattle seized for the in- fraction of the " Customs Act," and held by the Crown as forfeiture. Upon conclusions as to facts drawn from the evidence the peti- tion of right was refused by the Exchequer Court (10 Ex. C. R. 79). On appeal the judgment of the Exchequer Court was af- firmed. Spencer Brothers v. The King, xxxix., 12. 106. Construction of will — Description of legatee — Devise " to my wife " — Bigamous marriage — Burden of proof.] — A devise made in a will ■' to my wife " was claimed by two women, with both of whom the tes- tator had lived in the relationship of hus- band and wife. — Held, per Idington, J. — That, even if the first marriage was as- sumed to have been validly performed, all the surrounding circumstances shewed that, by the words " to my wife," the testator intended to indicate the woman with whom he vvas living, in that relationship at the time of the execution of the will and there- after up to the time of his death. — Held, per Duff, J. — That the woman who claimed to have been first married to the testator had not sufliciently proved that fact, and that the other woman, who was living with the 465 EVIDENCE. 466 testator as his wife at the time of the ex- ecution of the will and up to the time of his death, was entitled to the devise. — Reld, per Davies and Maclennan, JJ., dissenting. — That the first marriage was sufiiciently proved and, cgnsequently, that the devise went to the only person who was the legal wife of the testator. — Fitzpatrick, C.J., was of opinion that the appeal should be dis- missed. — Judgment appealed from (13 B. C. Rep. 161) affirmed, Davies and Maclennan, JJ., dissenting. Marks v. Marks, xl., 210. 107. Board of Revision — Judioial func- tions — Administrative powers — Minutes of proceedings.^ — In proceedings, by certio- rari, to remove a decision of the Court of Revision, the evidence adduced in support of the contention that the court had failed to dispose of the question in a proper man- ner consisted merely of a minute of its pro- ceedings whereby it was resolved " that all charitable institutions mentioned in sub- section 3 of section 46 of ' Vancouver Incor- poration Act ' be exempted from taxation to the extent of the area occupied by the buildings thereon, and an additional amount of land equal to 2.5 per cent, of the area, and that the assessment roll for 1900, as amended, be confirmed." — Held, affirming the judgment appealed from (15 B. C. Rep. 344), that this minute, in the absence of further evidence, was not incompatible with the view that the Court of Revision had examined each particular ease before decid- ing to act in the sense of the minute, and that it would be a proper direction in each individual case. Sisters of Charity of Pro- vidence V. City of Vancouver, xliv., 29. And see Assessment and Taxation. 108. Benefit association — Life insurance — By-laws and regulations — ■Tram.sfers be- tween lodges — Member in good standing — Regularity of affiliation — Payment of dues and assessments — Evidence — Presumption — Waiver.] — Where the constitution of a benefit association provides that members shall not be transferred from one lodge to another unless all dues and assessments have been paid, up to and including those for the month in which the application for affiliation is made, the fact that, upon such an application, a member was transferred from' one lodge to another involves the pre- sumption as against the association that the teansfer was regularly made when the mem- ber was in good standing and in accordance with the regulations. Ancient Order of United Workmen of Quebec v. Turner, xliv , 145. 109. Title to lands — Grant from Crown — Description — Navigable or floatable waters —Inlet of navigable river — Implied reserva- tions—Crown domain — Public law — Con- struction of deed — Estoppel — Waiver xxxiv., 603. See RivEEs and Stbeams. 110. Mines and mining — Dangerous ways, etc. — Inspection of pit — Employer and em- ployee — Negligence — Presumptions— Re- versal on findings of fact, xxxvi., 13. See Negligence. 111. Negligence — Railways — Excessive speeds—Fencing — Railway Act, 1888, ss. 19i, 197—55 & 56 Vict. c. 27, s. 6 (D.)— Infer- ences, xxxvi., 180. See Evidence. 112. Practice — Motion to refer case for further evidence — Presumption as to legis- lative power of Parliament, xxxvi., 596. See Peactice — Statute. 113. Operation of railway — Straying ani- mals — Negligence — Duty as regards tres- passers on railway — Herding stock — Infer- ences as to facts, xxxvi., 641. See Negligence. 114. Title to land — Dedication — Public highway— Expropriation — Presumption — User, Cam. Cas. 53. See Highway. 115. Chattel mortgage — Renewal — Time for filing — Identification of goods — Suffi- ciency of description — Proof of judgment and execution, Cam. Cas. 436. See Chattel Moetgage. 116. Dedication of highway — Conditions in Crown grant — Access to beach — Plan of subdivision — Destination by ownei — Limita- tion of user — Long use by public — Acquisi- tive prescription — Recitals in deeds — Cadas- tral plans, references and notices — Presump- tion, xli., 264. See Highway. 10. Secondary Evidence. 117. Will— Evidence Act — R. S. N. S. (1900) c. 163, ss. 22 and 27 — Secondary evidence — Ejectment — Mesne profits.] — Sec- tion 27 of the " Evidence Act " of Nova Scotia (R. S. N. S. (1900) c. 163) pro- vides that " a copy of a notarial act or in- strument in writing made in Quebec before a notary public, filed, enrolled or enregis- tered by such notary and certified by a no- tary or prothonotary to be a true copy of the original, thereby certified to be in his possession as such notary or prothonotary, shall be received in evidence in any court in place of the original, and shall have the same force and effect as the original would have if produced and proved." — And by the first two sub-sections of section 22 it is pro- vided that : — " The probate of a will or a copy thereof certified under the hand of the registrar of probate or found to be a true copy of the original will, when such will has been recorded, shall be received as evidence of the original will, but the court may, upon due cause shewn upon affidavit, order the original will to be produced in evidence, or may direct such other proof of the original will as under the circumstances appears necessary or reasonable for testing the au- thenticity of the alleged original will, and its unaltered condition and the correctness of the prepared copy." — (2) This section shall apply to wills and the probate and copies of wills proved elsewhere than in this pro- vince, provided that the original wills have 467 EVIDENCE. 468 been deposited and the probate and copies granted in courts having jurisdiction over the proof of vi'ills and administration of in- testate estates, or the custody of wills."- — ■ Held, that a copy of a vi^ill executed before two notaries in the Province of Quebec un- der the provisions of article 834 C C. cer- tified by one of said notaries to be a true copy of the original in his possession, is admissible in evidence on the trial of an ac- tion of ejectment in Nova Scotia, as pro- vided in section 27. Musgrave v. Angle, xliii., 484. 118. Ownership of horses — Bill of sale — Foreign judgment — Interpleader — Seeon dary evidence — Parol testimony. Evans v. Evann, 1., 262. See Bill of Sam. 11. Sufficiency of Proof. 119. Dangerous way — Defective works — 'Negligence — Employers' Liability Act — In- jury to servant — Prommate cause — R. S. N. 8. (1900) c. 79.1 — ^D. was engaged in moiv- ing cars at the quarry of the company. The cars were loaded at a shaft under a crusher and had to be taken past an unused chute about 200 feet away supported by a post placed 7% inches from the track. D. hav- ing loaded a car found that it failed to move as usual after unbraking and he had to come down to the foot-board and shove back the foot-rod connected with the brake. The car then started and he climbed up the steps at the side to get to the brake on top but was crushed between the car and the post. He could have got on the rear of the car Instead of using the steps or jumped down and walked along after the car until it had passed the post. The manager of the quarry had been warned of the danger from the post but had done nothing to ob- viate it. Held, reversing the judgment ap- pealed from (36 N. S. Rep. 113), Da vies and Killam, jj., dissenting, that D.'s own negligence was the cause of his injury and the company were not liable. — Held, per Davies and Killam, JJ., that the position of the post was a defect in the company's works under the Employers' Liability Act which was evidence of negligence. Domin- ion Iron and Steel Co. v. Day, xxxiv., 387. 120. Illegal fishing — Seizure of vessel — Evidence of vessel's position.] — The Ameri- can vessel "Kitty D." was seized by the Government cruiser "Petrel" for fishing on the Canadian side of Lake Erie. In pro- ceedings by the Crown for forfeiture the evidence was conflicting as to the position of both vessels at the time of seizure and the local judge in admiralty held that the evi- dence did not establish that the vessel seized was in Canadian waters at the time. On appeal by the Crown : Held, Taschereau, C.J., dissenting, that as the "Petrel" was furnished with the most reliable log known to mariners for registering distances and her compass bad been carefully tested and cor- rected for deviation on the morning of the seizure ; as the "Kitty D." and the two tugs in her vicinity at the time, whose captains gave evidence to shew that she was on the American side, carried no log nor chart and kept no log-book ; and as the local judge had misapprehended the facts as to the course sailed by the "Petrel," the evidence of the ofBcers of the "Petrel" must be accepted and it established that the "Kitty D." had been fishing in Canadian waters and her seizure was lawful. (Reversed by Privy Council, 21st Deer., 1905.) The King v. The "Kitty D.", xxxiv., 673. 121. Statute of Frauds — Part performance — Evidence.] — -M. leased land to his two sons, S. and W., of which fifty acres was to be in the sole tenancy of W. In an action by M. against S> for waste by cutting wood on' said fifty acres the defence set up was that, by parol agreement, in consideration of S. conveying one hundred acres of his land to W. he was to have a deed of the fifty acres, and having so conveyed to W. he had an equitable title to the latter. M. admitted the agreement but denied that the land to be conveyed to S. was the said fifty acres. — Held, per Nesbitt and Idington, JJ.,- that the conveyance to W. was a part perform- ance of the parol agreement and the sta- tute of frauds was no answer to this defence. — The majority of the court held that as the possession of the fifty acres was refer- able to the lease as well as to the parol agreement, part performance was not proved, and aflirmed the judgment appealed from In favour of the plaintiff (37 N. S. Rep. 23) on this and other grounds. Meisner V. Meisner, xxxvi., 34. 122. Admiralty law — Collision — Violation of rules not affecting accident — Steering wrong course.} — A steamer coming up Hali- fax harbour ran into a schooner striking her stern on the port side. No sound sig- nals were given. The green light of the schooner was seen on the steamer's port bow and the latter starboarded her helm to pass astern and then ported. She then was so close that the engines were stopped but too late to prevent the collision. — Held, that the steamer alone was to blame for the collision. — Held, also, that though under the rules the schooner should have kept her course and also was to blame for not hav- ing a proper look-out, neither fault contri- buted to the collision. — (Appeal to Privy Council stood dismissed, 27th May, 1907, for want of prosecution, under Privy Council Rule V. of 18th June, 1853). SS. "Arran- more" v. Rudolph, xxxiviii., 176. And see Ships and Shipping. 123. Title to land — Possession — Prescrip- tion — Interruptive aohnowledgment,] — The company claimed prescriptive title to a part of the bed of a small river on which D., the respondents' auteur, had been a riparian owner. D. had leased lands on the banks of the river to the company which, it was alleged, included the property in dispute. The only evidence as to interruption of pre- scription consisted of a letter by the com- pany to D. enclosing a cheque in payment for "use of your interest in Cap Rouge River this year," with an indorsement by D. acknowledging receipt of the funds "with the understanding that the navigation of the river is not ^o be preyented. — Held, re- versing the judgment appealed from (13 Ex. C.R. 116), Girouard and Idington, JJ., dis- senting, that the memorandum was too 469 EVIDENCE. 470 vague to serve as an interruptive acknovir- ledgment sufficient to defeat the title claimed by the company. Gap Rouge Pier Wharf and Dock Co. v. Duchesnay, xliv., 130. 124. Criminal law — Verdiot.'\ — Evidence making a primd facie case for the Crown in a criminal prosecution, if unanswered and believed by the jury, is sufficient to support a coniviction of the person accused. Oirvin V. The King, xlv., 167. 125. Company — Issue of shares — Authority to sign certificate — Estoppel — Evidence.'] — Held, per Fitzpatrick, C'.J., and Du£E, J., that where by statute and the by-laws of a joint-stock company certain of its officers are empowered to sign stock certificates, and they sign a certificate under seal in favour of a person who has agreed to change his position on receipt of the shares it represents and who is declared therein to be the holder of such shares, the company is estopped from denyine that it was issued by its authority, even if one of the officers signin? it was acting fraudulently for his own purposes in doing so. — Held, per Anglin, J., that the cer- tificate is only primA facie evidence of the statements therein and such evidence may be rebutted by shewing that it was issued without authority. In this case, however, Davies and Idington, JJ.. contra, the com- pany failed to make such proof. — Judgment of the Court of Appeal (23 Ont. L.R. 342) reversed, Davies and Idington, JJ., dissent- ing. Mackenzie v. Monarch Life Assur. Co., xlv., 282. 126. Municipal corporation — Repair of highways — Statutory duty — "Vnfenced trap" in sidewalk — Misfeasance — Actionable neg- ligence — Notice — Kn owledge — Person al in- juries — Liability of corporation — Findings of jury — "Res ipsa loquitur."] — where a municipal corporation is liable for damages sustained by reason of negligent nonfeasance of the statutory duty imposed upon it to maintain its highways in good repair, the questions of notice or knowledge of the de- fects do not arise. There is a presump- tion, in such cases, against the municipal corporation and upon it lies the onus of adducing positive evidence in rebuttal ; it is not sufficient to shew that the existence of the defects were not known by the corpora- tion officials. Mersey Docks and Harbour Trustees v. Gibbs (L.R. 1 H.L. 93) , applied ; City of Vancouver v. McPhalen (45 Can. S.C.R. 194) and McClelland v. Manchester Corporation ((1912) 1 K.B.. 118) referred to. Davies and Anglin, jJ., contra. — An unprotected opening in the sidewalk of one of the prinicpal streets of the city, having the appearance of being recently made for some purposes in connection with the laying of gas-pipes, was permitted to remain with- out proper repair during most of the day, and, at about four o'clock in the afternoon, the plaintiff's injuries were sustained by stepping into the hole while making use of the sidewalk. — Held, affirming the judgment appealed from (1 West. Weekly Rep. 31; 19 W.L.R. 322), Davies and Anglin, JJ., dissenting, that evidence of these facts made out a proper case for submission to the jury, and upon which they could return findings of breach at statutory duty and misfeasance on the part of the municipal corporation. City of Vancouver v. Cum- mings, xlvi., 457. 127. Election law — Nomination — Irregu- larities — Omission of additions — Indentifi- cation of candidate — Technical objections — Receipt for deposit — Validating effect — Con- struction of statute — R.8.C., 1906, c. 6, "Do- minion Elections Act" — -R.S.O., 1906, c. 7, "Dominion Controverted Elections Act."] — Per Fitzpatrick, C.J., and Davies, Anglin and Brodeur, JJ., — Technical objections to the form of nomination papers filed with the returning officer at an election of a member of the House of Commons, under the provisions of the "Dominion Elections Act," R. S. C, 1906, ch. 6, should not be permitted to defeat the manifest purpose of the statute. The omission in nomination papers to mention the residence, addition or description of the candidate proposed in such a manner as sufficiently to identify him constitutes a patent and substantial failure to comply with the essential require- ments of section 94 of the Act ; on the objection in this respect taken by the only opposing candidate it is the duty of he returning officer to reject a nomination so irregularly made and to declare such oppos- ing candidate elected by acclamation. Such rejection and declaration of election by ac- clamation may properly be made by the re- turning officer after the expiration of the time limited for the nomination of candidates by section 100 of the Act. — Per Fitzpatrick, C.J., and Davies, Anglin and Brodeur, JJ., (Idington and Duff, JJ., contra). — The re- ceipt for the required deposit of .$200, ac- companying th« nomination papers, given by the returning officer under the provisions of section 97 of the "Dominion Elections Act," is evidence merely of the production of the papers and payment of the deposit and not of the validity of the nomination. — Per Idinrton and Duff, JJ., (dissenting). — The receipt so given for the required deposit constitutes a legal assurance that the candidate has been duly and properly nominated ; it cannot be revoked nor the nomination papers rejected by the return- ing officer after the expiration of the time limited by section 100 of the Act for the nomination of candidates ; when that time has passed all questions touching the sta- tutory sufficiency of the papers are conclud- ed in so far as it is within the province of the returning officer to deal with such matters. — Per Duff, J., (dissenting). — ^Where the re- turning officer has received papers profess- ing to nominate a proposed candidate with the consent of the candidate to such nomina tion and given his receipt for the required deposit pursuant to section 97 of the Act. and the time limited for the nomination of candidates at the election has expired, the status of such candidate becomes finally determined quoad proceedings under the con- trol of the returning officer and it is then the duty o.f that official to grant a poll for taking the Votes of the electors. — Per Duff, J., (dissenting). — In view of the limited jur- isdiction conferred upon judges in respect to election trials under the ""Dominion Con- troverted Elections Act," R.S.C., 1906, ch. 7, where the returning officer has exceeded his legal powers by improperly returning a candidate as having been elected by acclama- tion the judgment should declare that the 471 EVIDENCE. 472 election was not acording to law. — The judgment appealed from (Q.R. 42 S'.C. 235) was affirmed, Idington and Duff, JJ., dis- senting. Two Mountains Election, xlvii., 185. 128. Sale of goods — Condition as to prices — Lost invoices— Secondary evidence Waiver — Breach of contract — Damages.] — The defendants agreed to purchase the plaintiff's stock-in-trade at a valuation to be based upon an advance of 13% on the iovoice prices of the goods when taken into stock. On stock being taken by the parties the plaintiff was unable to produce invoices for a large portion of the goods, but_ in- sisted that their prices could be ascertained from private markings on the packages which, she alleged, represented the prices taken from the missing invoices. Differences arose between the parties respecting the prices of these goods, but the inventory was closed with the prices, as they had been marked on the packages, carried into the valuation columns. The defendants refused to complete the purchase on account of fail- ure to oroduce the invoices in question and the action was brought to recover damages for breach of the contract. — Held, reversing the iudgment appealed from (2 D.L.R. 293 ; 1 West. W.R. 1103), Duff, J., dissenting, that the consent of the defendants to the closing of the inventory with the prices in question stated according to the information obtained from the private markings consti- tuted satisfactory proof of the fulfilment of the original agreement and, consequently, damages could be recovered for breach of the contract to purchase. — Per Duff, J., dissenting. — There could be no contract ca- pable of enforcement until the prices of the whole of the stock had been ascertained in the manner contemplated by the agreement, and the closing of the inventory with prices supplied from the unverified statements of the plaintiff did not constitute a new con- tract, varying the condition in the agreement as to the fixing of the prices to be paid. Therefore, no action could lie to recover damages for breach of the contract to pur- chase. Periard v. Bergeron, xlvii., 289. 129. Fisheries — Seizure of foreign ship — Fishing within territorial waters— Jurisdic- tion of Canadian court — Concurrent findings of fact.]- — -Where the evidence as to the place of the seizure of a vessel for unlaw- ful fishing within Canadian waters is un- satisfactory, and leaves it doubtful whether or not the vessel seized was, at the time of seizure, within the three-mile limit of the Canadian coast, it would be unsafe and unjust to condemn her. — Per Fitzpatrick, C.J., and Anglin, J., — Where a charge of unlawful fishing within the territorial waters of Canada involves the condemnation of a foreign ship, the evidence must establish with accuracy and certainty the fact that the offence was committed within such ter- ritorial waters.— Per Duff, J. — Where con- demnation involves the forfeiture of a ship belonging to an alien friend, as well as the jurisdiction of the trial court to award the condemnation and of the legislature over the locus of the act complained of, the evidence must establish more than a probability barely sufficient to sustain a verdict in any ordinary civil action in which none of these exceptional elements are pre- sent. — The judgment appealed from was re- versed. Idington and Brodeur, J J., dissent- ing on the ground that the concurrent find- ings of both courts below ought not to be disturbed on appeal. Carlson v. The King, xlix., 180. 130. Bill of sale — Transfer 'between near relatives — Preferential assignment — Suspi- cious circumstances — Corroiorative evidence — Bona fides — Practice — Fraudulent prefer- ence.] — Where a bill of sale made between near relatives is impeached as being in fraud of creditors and the circumstances attending its execution are such as to arouse suspicion the court may, as a matter of prudence, exact corroborative evidence in support of the reality of the consideration and the iona fides of the transaction. — Judg- ment appealed from (7 West. W.E. 416) re- versed. Koop V. Smith, Ij., 554. 131. Mines and minerals — Removal of ore — -Bounda/ry — Copy of plan — Falsa demon- stratio. Nova Scotia Steel Co. v. Bartlett, Cout. Cas. 268. 1.32. Contract — Resolution iy municipal corporation — Acceptance of offer to purchase — Written instruments— Statute of Frauds — Estoppel, xxxiv., 132. iSee Contract. 133. Sale of goods — Owner not in posses- sion — Authority to seU — Secret agreement — Estoppel, xxxiv., 429. See Sale. 134. Title to lands — Colouraile title — Con- structive possession — Statute of Limitations, xxxiv., 627. See Possession. 135. Appeal — Jurisdiction — Life pension — Amount in controversy — Actuaries' tables, XXXV., 5. See Appeal. 136. Mistake — Misrepresentation — Lay agreement — Mortgage — Execution of docu- ments by illiterate persons, xxxv., 110. See Conteact. 137. Construction of contract — Custom of trade — Arts. 8 and 1016 C. C. — Sale of goods — Delivery, xxxv., 274. See Contract. 138. Crovm lands — Mining lease — Tres- pass — Conversion — Title to lands — Descrip- tion in grant— Plan of survey — Certified copy, XXXV., 527. See Evidence. 139. Negligence — Railways — Excessive speed — Fencing — Railway Act, 1888, ss. IH, 197—55 & 56 Vict. c. 27, s. 6 (D.)— Rea- sonable inferences, xxxvi., 180. See Evidence. 140. Title to lands — Conveyance in fee — Reservation of life estate — Possession — Ejectment, xxxvi.. 231. See Evidence. 473 EVIDENCE. 474 141. Execution of will — Promoter — Testa- mentary capaeity— Corroborative testimony, xxxvii., 100. See Evidence. 142 Appeal — Order eaetending time — Jur- isAiciionr-M. S. G. (1886) o. 135, s. J,^ Practice — Trespass — Possession — Mm- ience— Expropriation — Railways, xxxvm., 230. „ , See Appeal. See Trespass. 143. Title to land — Promise of sale — En- try in land-register— Tenant ly sufferance— Squatter's rights — Possession in good faith —Eviction — Possessory action — Compensa- tion for improvements — Bents, issues and profits— Set-off-Tender of deed — Bestnc- tive conditions — Commencement de preuve 4crit—Arts. ill, m, ill, 419, 1204, l^SS, W6, W8 C. C, xxxix., 47. See Action. See Title to I/and. 144. Possessory action — Trouile de pos- session — Bight of action — Actio negatoria servitutis — Trespass — Interference with wa- tercourse — •Agreement as to user — Expira- tion of license iy non-use — Tacit renewal — Cancellation of agreement — Becourse for damages, xxxix., 81. gee Action. See Peactice. 145. Promissory note — Protest in London, England — Notice of dishonour to indorser in Canada — Knowledge of address — First mail leaving for Canada — Notice through agent — Agreement for time — Discharge of surety — Appropriation of payments, xxxix., 290. See Bnxs and Notes. 146. Title to land — Interest in mining areas — Sale ly trustee — Becovery of proceeds of sale — Agreement in writing — Statute of FroMds-B. S. N. S. (1900) c. Ijl, ss. 4 and t-Part performance— Acts referable to contract — Evidence — Pleading, xxxix., 608. See Title to Uand. 147. Title to land — Trespass — Convention- al line — Boundary — Agreement at trial — Pleading — Practice, Cam. Oas. 171. See Trespass. 148. Builders and contractors — Materials supplied — Order for money payable under contract — Estoppel — Lien — Entering equitable assignment — Practice. Bitchie v. Jefrey, lii., 243. See BuiLDEBS and ContSactoks. 149. Title to land — Conveyance in fraud of creditors — Husband and wife — Advance- ■ rnent — Trustee — Equitable relief — Bestitu- tion — Statute of Frauds. Scheuerman v. Scheuerman, lii., 625. See Title to Land. 150. Evidence — Sale for delinquent taxes — Tax sale deed — Premature delivery — Statu- tory authority — Condition precedent — Pre- sumption — Curative enactment — Certificate of title (B.C.). Heron v. Lalonde, liii., 503. See Assessment and Taxation. 151. Debtor and creditor — Surety — -Stat- ute of Frauds — Advances to company — Third- party's promise to pay. Gilles v. Brown, liii., 557. See Debtor and Creditor. 152. Sale of land — Purchase of equity- Indemnity against mortgage — Parol evi- dence of relations. Campbell v. Douglas, llv., 28. See Mortgage. 153. Broker — Transactions on change — Sale of goods — Principal and agent — Action —Parol testimony— Arts. 1206, 12SS, 12S5 C.G., liv., 131. See Broker. 12. Varying Terms op Writings. 154. Construction of deed — Description of lands — License to cut timber — Ambiguitas latens — Evidence — Boundary,'] — A license to cut timber on a lot of land described the portion affected as bounded on the south by a river. The river almost crossed the lot at a point near its northern boundary and, at another point, about nineteen arpents fur- ther south, it again crossed the lot com- pletely. In an action to eject the licensee from the portion of the lot between the first and second bends of the river and to recover damages : Held, that, under the' circum- stances, there was no ambiguity in the de- signation of the quantity of the land affected by the license and, in any event, the lan- guage of the instrument must be literally construed in favour of the grantee and the party bound thereby could not be permitted to shew a different intention by evidence of surrounding circumstances. Morel v. Le- frangois, xxxviii., 75. 155. Account stated — Admission of liabil- ity — Promise to pay — Collateral agreement — Parol testimony, xxxvii., 315. See Evidence. 156. Bivers and streams — Navigable and floatable waters — Obstructions to navigation — Crown lands — Letters patent of grant ■ — Collateral circumstances leading to grant — Limitation of terms of grant — Biparian rights — Fisheries, xxxvii., 577. See Evidence. 157. Chattel mortgage — Fraudulent con- veyance — Pleading — Practice — Appro- bating and reprobating transaction — Bight to redeem — Oral evidence to vary deed — Sheriff's sale ■ — Equity of redemption — Exe- cution, Cam. Cas. 251. See Pleading. 13. Weight of Evidence. 158. Bailways — System of construction — Exposed switch-rods— Negligence — Danger- 475 EVIDENCE. 476 ous contrivance — Verdict — Fine against.^ — In accordance Avith what was shewn to be good railway practice the tracks in the company's yards were provided with switch-rods which were left uncovered and elevated a slight distance above the ties. While in performance of his work, dur- ing the day-time, an employee sustained injuries which, it was alleged, hap- pened in consequence of tripping on switch-rods while a car was being moved over the switch. In an action by him for damages, the jury based their ver- dict in his favour on a finding that the railway company had been negligent in per- mitting the switch-rods to remain in an exposed condition. — Held, per curiam, af- firming the judgment appealed from (8 West. W.R. 853), that the finding of neg- ligence by the jury in regard to the switch- rods in question was against the evidence as to proper method of construction and could not be upheld. Idington and Brodeur, JJ., dissented on the view that evidence re- specting the unsafe condition of the switch- rods had been properly submitted to the jury and their findings thereon ought not to be questioned. Mallory v. Winnipeg Joint Terminals, liii., 323. 159. Discretion of court below — Order for new trial — Weight of evidence — Verdict — New grounds taken on appeal, xxxiv., 338. See Appeal. 160. Master and servant — Contract of ser- vice — Termination iy notice — Incapacity of servant — Permanent disahility — Findings of jury — Weight of evidence, xxxiv., 366. See Master and Servant. 161. Pleading — Purchase for value with- out notice — Onus — Affirmative and_negative evidence — Weight of evidence, xl., 510. See Evidence. 162. Expropriation of land — Compensation — Sales in vicinity. Toronto Suburban Ry. Go. V. Everaon, liv., 395. See EXPROPRIATION of Land. 163. Maritime lau: — Collision — 'Negligence — Fiiilurc to hear signals, xli., 54. See Admiralty Law. 164. Sale of stock — Evidence of title — Duty of vendor — Defective certificate, xli., 88. See Company. 165. Servitude — Construction of deed — Purchase of dominant and servient tenements — Unity of ownership — Extinction of servi- tude — Revival by sale of dominant tenement — Effect of sheriff's sale — Purgation of ap- parent servitude — Reference to former deed creating charge — Lost deed, xli., 217. See Servitude. 166. Mines and mining — "B. C. Mineral Act, 1S91" — Apex location — Exploitation of vein — Continuity — Extralateral workings — Encroachment — Trespass — Onus of proof. xli.. 377. See Mines and Mining. 167. Ships and shipping — Perils of the sea — Vnseaworthy ship — Warranty — Inspec- tion of shipping — Certificate of seaworthi- ness — Construction of statute — R.S.G. 1906, c. lis, s. 3li2 — Drowning of sailors — Negli- gence of master — Liability of owner. Con- nolly V. Orenier, xlii., 242. See Ships and Shipping. 168. Sale of land — Contract for sale — Time of essence — Delay of vendor — Descrip- tion — Statute of Frauds — Spedf-o perform- ance. Anderson v. Foster, xlii., 251. See Specific Peefobmance. 169. Bailment — Negligence — Damages — Storage of meat. Charrest v. Man. Cold Storage, xlii., 253. See Ballmbnt. 170. Chattel mortgage — Sale under powers — Notice — Offer to redeem — Tender — Equit- able relief — Proceedings taken in good faith, xlv., 3. See Chattel Mortgage. 171. Complaints to Railway Commission- ers — Agreement for special ra^s — Unjust discrimination, xlv., 321. See Railways. 172. Gift-money received — Pleading — Pre- sumption — Proceeds of prostitution — Con- version — Lien. Johnston v. Desaulniers, xlvi., 620. 173. Sale of goods — Express or implied warranty. Canadian Gas Power and Launches v. Orr Brothers, xlvi., 636. 174. Negligence — Explosion of dynamite — Inferences. Toronto Construction Co. v. Strati, xlvi., 636. 175. Fire insurance — Change of risk — Evidence — Use of gasoline. Anglo-American Fire Ins. Co. v. Morton, xlvi., 653. 176. Telephone conversation — Corrobora- tion. Warren, Gaowski & Co. v. Forst & Co., xlvi., 642. 177. Contract — Sale of hay — Rejection — Conversion — Damages — Counterclaim. Poir- ier V. The King, xlvi., 638. 178. Banking — Security for advances ■ — Assignment — Chose in action — Moneys to arise out of contract — Unearned funds- — Equitable assignment to third party — Notice — Priority of claim — Estoppel— Construction of statute — Manitoba "King's Bench Act" — "Bank Act," xlvii., 313. See Banking. 179. Negligence — Operation of tramway — Passenger riding on platform — Dangerous ar- rangement of car, xlvii., 395. See Negligence. 180. Negligence — Operation of railway — Protection of passenger — Mere conjecture, xlvii., 397. See Negligence. 477 EXCHEQUEE COUET. 478 181. Operation of railway — Condition of yard — "Lay-out" of concourse — Switching — "Workmen's Compensation for Injuries Act," B.8.M., 1902, a. 178— Contributory negligence — Volenti non fit injuria — Non- suit — New trial, xlvli., 403. See Railways. 2. Appeal — Jurisdiction — Declinatory re- cepiMn— Interlocutory judgment — Revirw of^judgment on exception — Practice, xxxvii 535. See Appeal. 182. Bills and notes — Mortgage — Collater- al security — Recovery on mortgage — New evidence — Lapse of time — Appeal, xlvii., 404. See Mortgage. 183. Negligence — Tramway — Explosion — Defective controller — Inspection, xlvii., 612. See Tbamways. 184. Construction of statute — "Quebec Public Health Act," R.S.Q., 19V9, art. S913 — Inspection of food — Duty of health officers — Quality of food — Condemnation — Seizure — Notice — Effect of action by health officers — Controlling power of courts — Injunction — Appeal — Jurisdiction — Question in contro- versy, xlvii., 514. See Statute. 185. Fraudulent conveyance — Statute of Elizabeth — Husband and wife — Voluntary settlement. McGuire v. Ottawa Wine Vaults Co., xlviii., 44. gee FsAUDtiLENT Conveyances. 186. Solicitor and client — Retainer — Sub- sequent proceedings — Habeas corpus. Duff V. Lane, xlviii., 508. .S'ce SOLICITOK. 187. Onus of proof — Operation of railway — Excessive speed — Negligence. Bell v. O.T.R.R. Co., xlviii., 561. See Railway.?. 188. Broker — Sale of land — Commission — General employment — Principal and agent — Introduction of purchaser — Interference by principal — Quantum mernit — Veriation of i.-iit:(ii contract — (.Uia.) 6 Edw. VII. c. il, xlix, 1, See Bkokek. 189. Master and servant — Profit-sharing —Partnership — Statute — R.S.B.C, 1911, c. S, s. 3; c. 175, s. J/ — Words and phrases — Partnership, xlix., 60. See Pabtnership. EXCEPTION. 1. Pleading — Acquiescence — Motion to quash — Practice.'\ — Where a respondent, on an appeal to the court below, has failed to set up the exception resulting from acquies- cence in the trial court judgment, as pro- vided by article 1220 of ihe Code of Civil Procedure, he cannot, afterwards, take ad- vantage of the same objection by motion to quash a further appeal to the Supreme Court of Canada. Chambly Mfg. Co. v. Willett, xxxiv., 502. And see Pbactice. EXCHANGE. 1. Vendor amd purchaser—Sale of lands— Misrepresentation — Fraud — Error Rp scission of contract— Sale or exchange— Da- tion en paiement— Improvements on property given in exchange — Option of party aa- gr^eved-Action to rescind-Actio quantum mmoris— Latent defects— Damages --WaT- xxxiv7l0r^"^"* '" '^"ti'^ff—Formal deed. See Vendor and Purchaser. .„.?■■ -f""f>«' «"<« agent— Broker selling on .l^abihty of principal— "Futures"— "Mar- xlt ^8^'""''"~Board rules-Indemnity, See Broker. 3. Tirnber license— Crown lands in Bri- tish Columbia,— Real estate— Personalty — Contract— Sale— Consideration — Payment in joint stock shares-Vendor's lien—Evi- iZ:'7l^:id^. ^^<"^f-Pleading and prac- See Lien. 4. Vendor and purchaser— .igreemeni to convey lands — Consideration — Price in money— Breach of contract— Recovery for money had and received" -^ Sale or eir- '■hange— Damages, xlv., 296. See Vendor and Purciia«!.:h. 5. Contract— Sale of lands— Specific per- formance---Foreign lands — Jurisdiction of courts of equity-Mutuality of remedy— Hekef m personam— Discretionary order— Appeals-Jurisdiction — "Final judgment ■' Junes V. Tucker, liii., 4.31. See Specific Pebfokiiax\ce. EXCHEQUER COURT. 1. Appeal — Jurisdiction — Final judgment — Time for appealing — Exchequer Court Act, R. S. G. (1908) c. HO, s. 82— Exche- quer Court rule.-i.J — Notwithstanding that no appeal has been taken from the report of a referee within the fourteen days mentioned in sections 19 and 20 of the General Rules a!id Orders of the Exchequer Court of Can- ada (12th December, 1899), an appeal will lie to the Supreme Court of Canada from an order by the judge confirming tlio report, as required by the said sections, wiiliiu the thirty days limited by section 82 of the Exchequer Court Act, R. S. C. (1906) e. 140. North Eastern Banking Co. v. The Royal Trust Co. In re Atlantic and Lake Superior Ry. Co., xli., 1. 2. Jurisdiction — Forfeiture of^ canal lands — Mis-user by Crown. Wrifilit v. The Queen, Cont. Cas. 151. 479 EXECUTION. 480 3 Admiralty law—JurisdtcUon of the Mas- chequer Court of Canada — Claim uwier mortgage on ship— Action %n remr-^Pleading ^Abatement of contract prioe—Defects m construction — Damages, xl-, 41o- Sec Ships and Shipping. 4 PnUic worl^Tort— -Negligence of fel- low servant^LiaUlity of Grown^Right of action-jurisdiction over claim for damages, xl., 220. See Railways. 5. Appeal — Jurisdiction — Time for ap- pealing—Exchequer Court ^"t'^-^-j^- (1906) c. IJfO, s. 82— Exchequer Court rules, xl., 455. See Appeal. I 6 Constitutional law — Indian lands- Extinguishment of Indian title— Payment by Dominion— UaUlity of province, s. S2---Uis- pute between Dominion and province, ulu., l- See Constitutional Law. 7. Registration of trade mark— Rectifica- tion of register — Jurisdiction of co«r;* — Construction of statute. Be Vulcan Trade Marie, li., 411. See Tkade Mask. 8. Appeal— Patent— Gonfiioting claims — Amount in controversy, liv., 610. See Appeal. EXCISE. Habeas corpus— Criminal law — Jurisdic- tion of judge of Supreme Court of Canada- Issue of ivrit of jurisdiction of provincial courts— 4Joncurrent jurisdiction — R. h>. 0. (1886) c. 135, s. 32 — Construction of stat- ute — Constitutional law— Powers of Parlia- ment— "Inland Revenue Act"— "Belling and delivering a still and worm" — Cumulative charge — Summary conviction — Adjournment Conviction in absence of accused, C!out. Cas. 110. See Habeas Cobpus. EXECUTION. 1. Execution for costs — ■ Practice — Levy by sheriff of district.^ — ^Motions to have se- curity approved and for leave to appeal were refused with costs.— Writs of fi. fa. were issued on 13th Nov., 1891, directed to the Sheriff of the District of Iberville, on prae- cipe filed by solicitors for the respondents. Black V. Huot, Cout. Cas. 106. 2. Mining lease — Prospector's license — • Testing machinery — Annexation to freehold jVodc fixtures — Fi. fa. de bonis — Sale un- der execution.] — The licensees of a mining area in Nova Scotia erected a stamp mill on wild lands of the Crown, for the purpose of testing ores. All the various parts of the mill were placed in position, either resting by their own weight on the soil or steadied by bolts, and the whole installation could be removed without injury to the freehold. — Held, that the mill was a chattel or, at any rate, a trade fixture removable by the licen- sees during the tenure of their lease or license and, consequently, it was subject to seizure and sale under an execution against goods. Judgment appealed from (36 N. S. Rep. 396) affirmed, but for different rea- sons. (Leave to appeal to Privy Council refused; May, 1905). lAscombe Falls Oold Mining Co. v. Bishop, xxxv., 539. 3. Practice — Appeal to Privy Council — Stay of execution — Security.] — ^Where after judgment on appeal to the Supreme Court of Canada, the losing party proposes to appeal to the Judicial Committee of the Privy Council, the court will order proceed- ings on such judgment in the court of origi- nal jurisdiction to be stayed on satisfactory security being given for the debt, interest and costs. Union Investment G.o. v. Wells; Montreal Light, Heat & Power Co. v. Re- gan; B. N. White Co. v. Star Mining £ MiUing Co., xli., 244. And see Sheeijff's Sale. 4. " Practice — Stay of execution."] — On an application to the full court, stay of ex- ecution was granted to put in security to the satisfaction of the registrar for debt, interest and costs, the applicant undertak- ing that application for leave to appeal to the Privy Council would be made not later than 20th June following, up to which date stay to operate, if security given, in Union Investment Go. v. Wells (39 Can. S. C. K. 625), 5th May, 1908. Similar orders were made 20th Oct., 1908, by Duff, J., in cham- bers, in Montreal Light, Heat and Power Co. V. Regan (40 Can. S. O. R. 580) , and, on 23rd March, 1909, by the Chief Justice in B. N. White Co. v. The Star Mining and Milling Co. Cf. Durocher v. Dur'ocher (27 Can. S. C. R. 634). Adams & Burns v. Bank of Montreal (31 Can. S. C. R. 223) ; Ex p. Jones (35 N. B. Rep. 108 ; Cout. Dig. 1124). 5. Conditional sale — Price payable before delivery — • Execution against movaT)les — Possession by judgment debtor — Ownership — Procedure by bailiff — Ouardian to second seizure — SaJe super non domino et non pos- sedente — Adjudication upon invalid seizure — Title to goods — Rescission of sale — Action — Legal maxims.] — The hull of a steamer sunk in a canal had been attached under judicial process and, while standing on the bank at a distance from which he could not see or touch the materials, a bailiff assumed to make a second seizure, gave no notice of his proceedings to those on board the hull, and appointed a guardian other than the one placed in charge of the hull at the time of the first seizure. The execution debtor, named in the second writ, had made a bar- gain for the purchase of the hull subject to the price being paid before delivery, but had not paid the price nor had the property been delivered into his possession. Subse- quently, the bailiff adjudicated the hull to the appellant by judicial sale at auction. — Held, that there had been no valid seizure under the second writ ; that the purchaser acquired no title to the property, by the adjudication, and the sale to him should be 481 EXBCUTOES AND ADMINISTRATOES. 483 rescindfid ; that, under the circumstances, there nould be no application of the maxim " eii fuit de meubles possession vaut titre," and that the maxim "main de justice ne des- saisit pas" must be taken subject to the qualification that a seizure under judicial process places the goods seized beyond the control of an execution debtor. The Con- necticut and Passumpsic Rivers Railroad Co. V. Morris (14 Can. S. C. R. 319) dis- tinguished, and the judgment appealed from (Q. R. 17 K. B. 193) affirmed. Brook v. Booker, xli., 331. 6. Appeal — Jurisdiction — Petitory action ■ — Bornage — Surveyor's report — Costs — Order as to location of houndary line — JBJxe- cution of judgment, xxxiv., 617. See Boundary. 7. Attachment of debt — Sale by sheriff — Payment — Ratification — Principal and agent, xxxv., 533. See SHEUiFr. 8. Sheriff's sale of lands — Opposition afin de charge — Discretionary order — Default in furnishing security — Res judicata — Es- toppel by record — Frivolous and vexatious proceedings — Quashing appeal — Jurisdic- tion of Supreme Court of Canada — R. 8. C. c. 135, ss._ 27, 59— Arts. 651, 728 C. P. Q., xxxvi., 613. See Opposition. 9. Assignment by mortgagor for benefit of creditors — P7'iorities — Assignment of claims of execution creditors — Redemption — As- signments and Preferences Act, s. 11 (Ont.) xxxix., 229. See Mortgage. 10. Married women — Separate property — Liability for debts of husband — Registry law — "Real Property Act" — "Married Women's Act" — Conveyance during coverture, xl., 384. See Maeeied ^A'OMEN. 11. Appeal — Delay in approval of security — Jurisdiction — Extension of time — Stay of execution, xl., 455. See Appeal. 12. Sheriff — Cause of action — Execution of writ of attachment — Abandonment of sei- zure — Estoppel, Cam. Cas. 78. See Attachment. 13. Set-off — Application of judgments — Equitable assignment — Practice — Stay of execution. Cam. Cas. 99. See Set-off. 14. Chattel mortgage — Renewal — Time for filing— Identification of goods — Sufficiency of description — Proof of judgment and exe- cution. Cam. Cas. 436. See Chattel Mortgage. 15. Taxation of costs — Stay of execution -^Setting-off costs in court below — Amend- ing minutes of judgment— Practice, Cout. Cas. 19. 16. Appeal — Jurisdiction — Commit- ment of judgment debtor — Final judgment — Manitoba King's Bench Rules TJ/S, 755 — "Matter or judicial proceeding" — Supreme Court Act, s. 2 (e). Svensson v. Bateman, xlii., 146. See Appeal. 17. Appeal ■ — Jurisdiction — Am,ount in controversy — Addition of interest — Amount of verdict — Stay of execution. Toronto R. R. C. V. Milligan, xlii., 238. See Appeal. 18. Contract — Sale of mining land — Sub- stituted purchaser — Reservation of claim against original purchaser — Forfeiture of second contract — ^Saie to other parties — Ef- fect on reserved claim. Vivian v. Clergue, li., 527. See Sale. 19. Substitution — Registration — Sher- iff's sale — Right of institute — Effect of sale under execution. Lerouw v. Mcintosh, lii.,1. See Substitution. EXECUTIVE POAVEKS. 1. Appeal — Jurisdiction — Discretion of Governor in Council — Stated case — Railway subsidies — Construction of statute — 3 Edw. VII. c. 57 — Con(f,ition of contract — Estimat- ing cost of construction of line of railway — Rolling -stock and equipment, xxxviii., 137. See Railways. 2. Constitutional law — Construction of statute — "Crown Procedure Act" — R. S: B. C. c. 57 — Duty of responsible minister of the Croicn — Refusal to submit petition of right — Tort — Right of action — Damages, xxxix., 202. See Action. And see Minister of the Crown. S.C.D. — 16 See Costs. EXECUTORS AND ADMINISTKA- TOBS. 1. Action by executors — Evidence — Cor- roboration^-R. S. O. [JS97] c. 73, s. 10.] — In an action by executors to recover money due from C. to the testator it was proved that the latter when ill in a hospital had sold a farm to 0. and $1,000 of the purchase money was deposited in a bank to testator's credit ; that subsequently C. withdrew this money on an order from testator who died some weeks after when none was found on his person nor any record of its having been received by him. C. admitted having drawn out the money but swore that he had paid it over to testator but no other evidence of any kind was given of such payment. — Meld, re- versing the judgment of the Court of Ap- peal, that a primd facie case having been made out against C. and his evidence not having been corroborated as required by R. S. O. [1897] c. 73, s. 10, the executors were entitled to judgment. Thompson v. Coulter, ^xxiv., 261. 483 EXPERTISE. 484 2. Executor and trustee — Moneys of tes- tator — Deposit in hanh — Authority to draw against — Oijt — Sale — Sale hy executor — Under value — JurisUiction of Proliate Court.'] — D. deposited money in bank in the joint names of himself and a daughter with power in either to draw against it. The daughter never exercised this power and when D. died slie and her co-executor of his will, in applying for probate, included said money in their statement of the property of the testator. — Held, that the money in bank remained the property of D. and did not pass to the daughter on his death. — An executor sold property of the estate for $800, his wife being the purchaser. On passing of the accounts the judge of probate found as a fact Ihat the property was worth $1,800 and ordered that the executor account for the difference. — Held, that the executor hav- ing really s(jld the property to himself se- cretly for an inadequate price he was pro- perly held liable to account for its true value. — Held, also, that though the Probate Court CO 'lid not set aside the sale it had jurisdiction to make such order. — Where by will money was bequeathed to the testator's daughter "to hold and be enjoyed by her while she remained unmarried" with a be- quest over in case of her decease or .mar- riage. — Held, that the daughter was only entitled to the income from said money and not to the possession and deposition there- of. — Reniarks on the absence from the re- cord of the decree of the court of the origi- nal jurisdiction. Re Daly; Daly v. Brown, xxxix., 122. See Wills. '■\. Suretyship — Simple contract — Dis- charge of one surety under seal — 'Confirma- tion of original guarantee — Death of surety — Potoers of executors — Continuance of guar- antee.'] — C. and others, by writing not under seal, agreed to guarantee payment of ad- vances by a bank to a company. Later, by , -vriting under seal, all the sureties but one consented to discharge the latter from lia- bility under the guarantee, the document providing that the parties did in every re- spect "ratify and confirm the said guarantee and consent to be bound thereby as if the said Ogle Carss had never been a party thereto." --l?eZd, that the last mentioned instrument did not convert the original guarantee into a specialty and C. having died an action thereon by the bank against his Executors instituted more than six years after his death was barred by the (Statute of Limitations. — Held, per Davies, Idington and Duff, JJ., that the executors had no power to continue the guarantee terminated by C.'s death by consenting to an extension of time for payment of the amount then due notwithstanding the provision in the guar- antee that it was to be continuing and that the doctrines of law and equity in favour of a surety should not apply thereto. Union Bank of Canada v. Cla/rk, xliii., 299. 4. Execution of will — Mism,anagement of estate — Fraud against creditors of iene- f/ciary. Union Bank of Canada v. Brig- ham, 'Gout. Gas. 355. 5. Construction of irill — Power of appoint- ment — Appeal — Jurisdiction — Matter in controversy — Special leave. Bradley v. Saunders, Gout. Cas. 380. 6. Devise — Discretion of executors — With- holding i/ncome — Reasonable time — Failure of object of devise — Cy-press — Costs, xxxv.. 182. See Will. 7. Executors — Probate of will — Promoter — Evidence — Subsequent conduct of testa- tor — Residuary devise — Trust, xxxvii., 404. See Will. 8. 'Will— Powers of emeoutors — 'Winding- up estate — • Time limit — Legacy — Special legislation — Extension of time — 3 Edw. YIl. c. 1S6 (Que.) — Construction of statute, xl . 489. See Will. 9. Administration proceedings — Statute of Limitations — Champertous agreement — Practice, Cam. Cas. 119. ^ee CnAMPEETT. EXEMPTIONS. 1. Construction of statute — Assessment and taxes — Railwaiys — Im,position of taxes —R. S. N. S. U900] cc. 70, 73, xxxv., 98. See Assessment and Taxes. 2. Assessment and taxes — Constitutional law_ — Exemptions from taxation — Land sub- sidies of the Canadian Pacific Railway — Extension of the boundaries of Manitoba — Construction of statutes respecting the con- stitution of Canada, Manitoba and the 'North-West Territories — Construction of contract — Grant in prmsenti — Cause of ac- tion — Jurisdiction — 'Waiver, xxxv., 550. See Assessment and Taxes. 3. Homestead lands — "Land Titles Act," 6 Edw. Til. c- 24; 8 Edw. VII. c. 29 (Sask.) — Exemption from seizure — Regis- tered incumbrance — "Exemptions Ordin- ance," 'N. W. T. Con. Ord. 1898, c. 27, xliv., 318. See Title to Land. 4. Title to land — Conveyance in fraud of creditors — Husband and wife — Advancement — Trustee — Equitable relief — Restitution — Evidence — Statute of Frauds. Scheuerman, etc., lii., 625. See Title to Land. EXPERTISE. 1. Boundary — Order for bornage — Evi- dence — Existing posts and blazing — -Exper- tise — Reference to surveyors — Reports and plans — Cases in action en bornage, xxxix., 680. See Boundary. 2. Assessment of damages — Case goods damaged by water — Flooding of cellar — Method of adjustment, xl., 577. See BtJiLDEEs and Contractoks. 485 EXPROPEIATIOX. ■iSCi 3. Industrial improvements on streams — Raising height of dam — Nuisance — Dam- ages — Expertise and arbitration — Bight of action — Measure of damages — R. S. Q. 1888, arts. 5535, 5536, xliv., 305. See RivEBS and Stbeams. 4. Practice and procedure — -Expertise — Appointm,ent of single expert — Submission of irrevelant questions — Arts. 392-Ji09 G. P. Q. Gie Ponthriand v. Cie de Navigation Ghateauguay et Beauharnois, xlvi., 603. 5. Rivers and streams — Industrial im- provements — Penning hack waters — Per- manent works — Damages — Measure of dam- ages — Arbitration — Reparation — Loss of vMter-power — Future damages — 'Compensa- tion once for all — Right of action — Practice -^Statute— R. S. Q. 1909, arts. 7295, 7296, xlix., 344. See Rivers and Streams. EXFROPKIATIOlf. 1. Bt the Ceown, 1-2. 2. By Municipal Authority, 3-7. 8. Fob Railways, Tramways, etc., 8-18. 4. Other Cases, 19-32. 1. By the Crown. 1. Expropriation of land — Payment — Market value — Potential value — Evidence.] — D. purchased at different times and ia sixteen different parcels 623 acres of land, paying for the whole nearly $7,000, or about $11 per acre. The Crown on expropriating the land offered him $20 per acre, which he refused, claiming $22,000, which on a reference to ascertain the value was increased to $45,000. Tie referee al- lowed $38,000, which the Exchequer Court reduced ito the sum first claimed. — Held, re- versing the judgment of the Exchequer Court (10 Ex. C. R. 208), Girouard, J., dis- senting, that there was no user of the laud nor any special circumstances to make it worth more than the market value, which was established by the price for which it was sold shortly before expropriation. — ^D. claimed the larger price as potential value of the land for orchard purposes to which he had intended to devote it. — Held, that as he had not proved the land to be fit for such purposes, and the evidence tended to dis- prove it, he could not receive compensation on that ground.— ByJ Edw. VII. c. 9, s. 1, only five expert witnesses can be called by^ either side on the trial of a case without leave. — Qucere. — If more are so called with- out objection by the opposite party is the testimony of the extra witness valid? Dodge v. The King, xxxviil., 149 2. R. S. C. 1906, c. US. S.S. 8. 23, 31— Abandonment of proceedings — Compensa- tion — Allowance of interest — iConstruction of statute — Practice — Taxation of costs — Solicitor and client — Reimbursement of ex- penses — Interpretation of formal judgment —-Reference to opinion of judge.'] — While the owners still continued in possession of lands in respect of which expropriation pro- ceedings had been commenced under the "Expropriation Act," R. S. C. 1900, c. 143, and before the indemnity to be paid had been ascertained, the proceedings were aban- doned, no special damages having been sus- tained. — Held, that in assessing the amount to be paid as compensation to the owners, under the provisions of the fourth sub-sec- tion of section 23 of the "Expropriation Act," there could be no allowance of interest either upon the estimated value of the lands or upon the amount tendered therefor by the Government. — The trial judge, by his written opinion, held that the owners were entitled to be fully indemnified for their costs as between' solicitor and client and for all legitimate and reasonable charges and disbursements made> in consequence of the proceedings which had been taken. The formal judgment provided merely that costs should be taxed as between solicitor and client. — Per Davies, Idington, Anglin and Brodeur, JJ. — In the taxation of costs, the registrar should follow the directions given in the judge's opinion to interpret the for- mal judgment as framed. Duff, contra. — Per Duff, J. — The registrar, in taxing costs, is required by law to follow the terms of the formal judgment and it is not open to him to correct it in order to make it accord with his interpretation of the opinion judg- ment. The court appealed from, however, may correct the formal judgment in so far as it does not express the intention of the' opinion judgment. Quebec, J acques-G artier Electric Co. v. The King, li., 594. 2. By Municipal Autiioeity. 3. Expropriation of land — Statutory au- thority — Manufacturing site — Suriei/ — Location — Trespass.] — The Town of t^yd- ney was empowered by statute to expropri- ate as much land as would be necessary to furnish a location for the works of the Do- minion Iron and Steel Co., a plan showing such location to be filed in the office for re- gistry of deeds and, on the same being filed, the title to said lands to vest in the town. Engineers of the company were employed by the town to survey the lands required for the site and to make a plan which was filed .IS required by the statute. M. two years later, after the company had excavated a considerable part of the land, brought an action for trespass claiming that it included five chains belonging to him and, at the trial of such action, the main contention was as to the boundary of his holding. He ob- tained a verdict which was affirmed by the full court : — Held, reversing the judgment appealed from (.36 N. S. Rop. 28) that the only question to be decided was whether or not the land claimed by M. was a part of that indicated on the plan filed ; that the sole duty of the engineers was to lay out the land which the town intended to expropri- ate ; and whether it was M.'s land or not wa.5 immaterial as the town could take it without regard to boundaries. Dominion Iron d Steel Co. v. McLennan, xxxlv., 394. 4. Water commission — Act of incorpora- tion — Construction — Appropriation of irn- ter.l — The Act for construction of water- 48r EXPEOPEIATION. 488 works in the City of London empowered the commissioners to enter upon any lands in the city or withiil fifteen miles thereof and set out the portion required for the works, and to divert and appropriate any river, pond, spring or stream therein : - — Held, Sedgewick and Killam, JJ., dissenting, that the water to he appropriated was not con- fined to the area of the lands entered upon but the commissioners could appropriate the water of the River Thames by the erection of a dam and setting aside of a reservoir, and that such water could be used to create power for utilization of other waters and was not necessarily to be distributed in the city for drinking and other municipal pur- poses. (Reversed on appeal to Privy Coun- cil, ([1906] A. C. 110). Water Commis- sioners of London v. Smmiy, xxxiv., 650. 5. Practice — Pleading — B. G. Rule 168 — New points raised on appeal — Condition precedent — .Construction of statute — 59 Vict. e. 62, ss. 9, 25 (B. C.) — Mineral claim ^ — Expropriation — Watercourses — Trespass — Damages — Waiver — Injunction.] — Wliere a trespasser, by taking proper steps to that effect, would have the right to ex- propriate the lands in dispute, an injunction should be withheld in order to enable the necessary proceedings to be taken and com- pensation made. Goodson v. Richardson (9 Ch. App. 221), and Cotcper v. Laidler ([1903] 2 Ch. 337) applied. But where there has been acquiescence equivalent to a fraud upon the defendant, the injunction ought not to be granted, even where the legal right of the plaintiff has been proved. Gerrard v. O'Reilly (3 Dr. & War. 414) ; Wilmot V. Barter (15 Ch. D. 96) ; Johnson V. Wyatt (2 De G. J. & S. 17) ; and Smith V. Smith (L. R. 20 Eq. 500), referred to. — By the defendants' charter [50 Vict. c. 62, ss. 9, 25. (B. C.)], it was provided that the powers to enter, survey, ascertain, set out and take, hold, appropriate and acquire lands should be subject to the making of onmpensation and that the powers, other than the powers "to enter, survey, set out and ascertain," should not be exercised or proceeded with until approval of the plans and sites by the Lieutenant-Governor in Council. The defendants entered upon lands of the plaintiffs, made surveys and con- structed works thereon without making com- pensation or obtaining such approval. Some time after entry the defendants obtained the necessary order in council approving of the plans and sites of the land to be expropri- ated : — Held, that making of compensation was not a condition precedent to making the survey and taking possession of the land, and as the said order in council was not dealt with at the trial the rights of the parties could not properly be determined on the material presented; the injunction should, therefore, be refused and the parties left to take proceedings as they should re- spectively see fit. — Per Sedgewick and Kil- lam, JJ. — That as approval of the plans had not been obtained till some time after the defendants had taken possession and appropriated the land, there was a trespass for which the plaintiffs were entitled to re- cover, but after the approval had been ob- tained the defendants remained rightfully in posses.sion and could not be compelled by a mandatory injunction to replace the land in its former position. — Judgment appealed from (10 B. C. Rep. 861) varied. Sandon Water Works and Light Co. v. Byron N. White Co., XXXV., 309. 6. Watercourses — Riparian rights — 'Tres- pass — Torts — Diversion of natural flow — Injurious affection — Damages — Execution of statutory powers — Arbitration — Injunc- tion — Mandamus — Construction of statute — ,59 Vict. c. 41f {N. S.).] — A riparian pro- prietor whose property has been injuriously affected by the unlawful diversion of the natural flow of a watercourse may recover damages therefor and may also obtain relief by injunction restraining the continuation of the tortious acts so committed. — The pow- ers conferred upon the town council of the Town of North Sydney, N.S., by the Nova Scotia statute, 59 Vict. c. 44, for the pur- pose of obtaining a water supply give them no rights in respect to the diversion of watercourses except subject to the provi- sions of the fourth section of the Act, and after arbitration proceedings taken to settle compensation for injurious affection to pro- perty resulting from the construction or operation of the waterworks. Saunby v. The Water Commissioners of London ([1906] A. C. 110) followed. (Leave to appeal to Privy Council was refused, 17th July, 1906) . Leahy v. Town of North 'Syd- ney, xxxvii., 464. 7. Municipal corporation — Statutory powers — Lands outside municipality — Ap- pointment of arbitrators — Procedure — Award — "Towns Corporations Act," R. S. Q. 1888, arts. 4561-4569 — Charter of Town of Fraserville, 3 Edw. VII. c. 69; 6 Edw- VII . c. 50 — Quebec "Expropriation Act," 54 Vict, c. 38 — Words and phrases — "Avoisinant " — "Adjoining."'] — ^The statutes incorporating the Town of Fraserville (3 Edw. VII. c. 69, 6 Edw. VIL c. 50 (Que.)), by section 183, gave power to expropriate lands both within and outside the limits of the munici- pality, and section 193 substituted a new section to replace article 4561 of the Re- vised Statutes of Quebec, 1888, in regard to expropriations. In expropriating lands outside its limits for an electric lighting system the town proceeded under articles 4562 to 4569 of the "Towns Corporations Act," R. S. Q. 1888, incorporated as part of the charter by force of article 4178. R. S. Q. 1888, and obtained an order appointing an arbitrator on behalf of the owner from a judge of the Superior Court. Notwithstand- ing objection by the owner, an award was made and he brought action to set it aside on the ground that, by section 193, the ap- plication of articles 4562 to 4569 was con- fined, in the case of the Town of Fraserville, to expropriations within its limits and, as to expropriations beyond that area, nomina- tions of arbitrators could be made only by the Attorney-General as provided by the " Expropriation Act," 54 Vict. c. 38. — Held, Anglin, J., dissenting. — That the sixth sec- tion of the Act, 6 Edw. VII. c. 50, by speci- fically authorizing the municipality to ex- propriate lands out.side its limits enacted provisions incompatible with those of article 4561, R. S. Q. 1888, as so replaced by sec. 193, and it was, therefore, repealed as the 489 EXPEOPEIATION. 490 repugnant provisions o£ the later statute prevailed. The King v. The Justices of Middlesex (2 B. & Ad. 818), and In re Can- nings and County Council of Middlesex ([1907], 1 K. B. 51), followed. Conse- quently, the procedure adopted for the ap- pointment of arbitrators was proper and the award was valid. — The statute, 6 Edw. VII. c. 50, by s. 6, authorizing expropriations out- side the town, in the French version made use of the phrase " dans ou en dehors de la ville et les municipalitfis avoisinantes," while the English version used the term " adjoining muicipalities." The 297th sec- tion of the charter provided that in the event of discrepancy preference should be given to the French version. — Held, that the statute should be interpeted according to the mean- ing of the broader term " avoisinantes," used in the French version and, consequently, in exercising such powers of expropriation, the municipality was not limited , to taking lands in contiguous municipalities. — Per Anglin, J. — By section 193 of the charter, the application of the provisions of the " Towns Corporations Act," arts. 4165 ot seq. R. S. Q. 1888, is expressly confined to expropriations within the town ; section 193 was not excluded from the charter nor im- pliedly repealed by the amendment of 1906 to section 183, and the appointment of arbi- trators by the judge was an usurpation of the jurisdiction conferred by articles 5754(J and 5754e, R. S. Q. 1888 (54 Vict. c. 38, s. ] ) , upon the Attorney-General of the pro- vince. Pouliot V. Town of Fraserville, liv., 310. 3. FoK Railways, Teamways, etc. 8. Municipal corporation — Railway aid — Construction of agreement — Description of lands — Reference to plans — R. 8. N. S. 1900, c. 99— S Edw. VII. c. 97 (N. S.).]— A municipality passed a resolution by which it agreed to pay for lands required for the right of way, station grounds, sidings and other purposes of a railway as shewn upon a plan filed under the provisions of the gen- eral railway Act. At the time of the reaoUi- tion there were four such plans filed, oach shewing a portion of the land proposed to be taken for these purposes and including, in the aggregate, a greater area than could be expropriated for right of way and station grounds under the provisions of the Acts applicable to the undertaking of the railway company. The legislature passed an Act confirming such resolution. To an action by the owner of the land taken, on an award fixing the value of that in excess of what could be so expropriated, the corpora- tion pleaded no liability on account of such excess and also, that there was no specific plan on file describing the land. — Held, affirmiiig the judgment appealed from (38 N. S. Rep. 76) that the first defence failed because of the Act confirming the resolution and, as to the second, that the four plans should be read together and considered to be the plan referred to in such resolution. County of Inverness v. Mclsaac, xxxvii., 75. 9. Expropriation of land — Arhitration — Authority for submission — Trespass — 2 Edw. VII. c. lOJ, (Sr.S.).]— By statute 'in Nova Scotia if land is taken for railway pur- poses the compensation therefor, and for earth, gravel, etc., removed shall be fixed by arbitrators, one chosen by each party and the third, if required, by those tKo. A rail- way company intending to expropriate, their engineer wrote to M., who had acted for the company in other cases, instructing him to ascertain whether the owners had arranged their title so that the arbitration could pro- ceed and, if so, to ask them to nominate their man who, with B., could appoint a third if they could not agree. The engineer added, " I will send an agreement of arbi- tration which each one can subscribe to or, if they have one already drafted, you can forwiird it here for approval." No such agreiiment was sent by, or forwarded to, the engineer, but the three arbitrators were appointed and made an award on which the owners of the land ,brought an action. — Held, reversing the judgment appealed from (38 N. S. Rep. 80),. that as the company hail not taken the preliminary steps required by the statute which, therefore did not govern the arbitration proceedings, the award was void for want of a proper sub- mission. — The company entered upon land and cut down trees and removed gravel therefrom without giving the owners the no- tice required by statute of their intention to take their property. The owners, by their action above mentioned, claimed damages for trespass as well as the amount of the award. — Held, that as the act of the com- pany was not authorized by statute the own- ers could sue for trespass and as, at the trial, the action on this claim was dismissed on the ground that such action was pro- hibited there should be a new trial. Invej^- ness Railway and Coal Go. v. Slclsaac, xxxvii., 184. 10. Railway Act — Appeal from award — Choice of forum — Curia designata. — By. s. 168 of 3 Edw. VII. c. 58, amending the Railway Act, 1903 (R. S. C. (1906) c. 37, s. 209) if an award by arbitrators on ex- propriation of land by a railway company exceeds $600, any dissatisfied party may appeal therefrom to a Superior Court which in Ontario means the High Court or the Court of Appeal (Interpretation Act, R. S. C. [1906J c. 1, s. 34, s-s. 26).— Held, that if an appeal from an award is taken to the High Court there can be no further appeal to the Supreme Court of Canada which can- not even give special leave. James Bay Ry. Co. V. Armstrong, xxxviii., 511. 11. Water lots — Expectation of enhanced value — Crown grant — Statutory authority.^ —Land in Halifax, N.S., including a lot ex- tending into the harbour, was expropriated for the purposes of the Intercolonial Rail- way. The title to the water lot was origin- ally by grant from the Government of Nova Scotia, hut no statutory autliority for mak- ing such grant was produced. The lot could have been made much more valuable by the erection of wharves and piers for which, however, as they would constitute an ob- struotion to navigation, a license from the Dominion Government would have to be obtained ; $10,000 was tendered as the value of all the land expropriated and the owners, claiming much more, appealed from the 491 EXPEOPEIATION. 492 Judgment of the Exchequer Court allowing that amgunt. — EM, DufE, J., dissenting, that the owners were not entitled to com- pensation based on the enhanced value that could be given to the waiter lot by the erec- tion of wharves and piers and the expecta- tion that a license would be granted there- for, and if they were the amount tendered was, in the circumstances, sufficient. — Qwcere. — Can a Crown grant of lands be made without statutory authority? — Held,, per Duff, J., that there was such authority in this case. — Judgment of the Exchequer Court (12 Ex. C. R. 414) affirmed. Cunard v. The King, xliii., 88. 12. Railways — ■ Construction and opera- tion — ■ Location plans — Delaying notice to treat — Action to compel expropriation — Compensation in respect of lands not ac- quired — Mandamus — Use of highway — Gros- sing pullic lane — Nuisance.] — The approval and registration of plans, etc., of the located area of the right-of-way, under the provi- sions of the "iRailway Act," and the sub- sequent construation and operation of a railway along such area, do not render the railway company liable to mandamus order- ing the expropriation of a portion of the lands shewn upon the plans which has not been physically occupied by the permanent way so construated and operated. — Judg- ment appealed from reversed, the Chief Jus- tice and Davies, J., dissenting. Vancouver, Victoria ti Eastern By. & 'Navigation Co. V. McDonald, xliv., 65. 13. Expropriation of land — Compensation — Transcontinental Railway Commission — Jurisdiction — "Railway Act" ■ — "Exchequer Court Act," s. 2 (d)—3 Edw. VII. c. 71.}— "Tibs Transcontinental Railway Act," 3 Edw. VII. c. 71, does not expressly em- power the commissioners to deal with com- pensation for land taken for the railway, and s. 15 giving them "the rights, powers, remedies and immunities conferred upon a company under the 'Railway Act' " does not confer such power. — ^The Transcontinental Railway is a public work within the mean- ing of s. 20, s.-s. (d) of "The Exchequer Court Act," and proceedings respecting com- pensation for land taken for the railway may be taken by or against the Crown in the Exchequer Court. — Judgment of the Ex- chequer Court (13 Ex. C. R. 171) reversed. J^he King v. Jones, xliv., 495. 14. Expropriation of lands — Estimating compensation — Prospective value — Evi- dence.} — In expropriations of lands for pub- lic purposes, under the 198th section of the "Railway Act," R. S. C. 1906, c. 37, as authorized by section 15 of the " National Transcontinental Railway Act," 3 Edw. VII. c. 71, the estimation of compensation to be awarded to the owners of the lands should be made according to the value of the lands to such owners at the date of expro- priation. The prospective potentialities of the lands should be taken into account, but it is only the existing value of such advan- tages at the date of expropriation that falls to be determined. In re Lucas and the Chesterfield Gas and Water Board ((1909), 1 K. B. 16), and Cedar Rapids Manufactur- ing and Pon-er Co. v. Lacoste (30 Times L. R. 293), followed.— Per Duff, J. — The jopinions of witnesses to the effect that cer- tain values would be assigned to expropri- ated lands upon a comparison of those lands with other lands in the vicinity for which selling prices might be estimated in a vague way cannot be deemed evidence sufficient to estaiblish values for the expropriated lands. (Leave to appeal to the Privy Council was refused, 20th May, 1914.) The King v. Tru- del, xlix., 501. 15. Railways — Materials for construction — -Notice to treat — Statute — "Rail/way Act," R. S. C. 1906, 0. ST, ss. 180, 191, 192, 19S, 194, 196 — Compensation — Date for ascer- tainment of value — Order for possession — Deposit of plans — Approval of Board of Railway Commissioners.} — With regard to obtaining materials for the construction of railways, the effect of suh-section 2 of sec- tion 180 of the "Railway Act," R. S. 0. 1906, c. 37, merely requires the general- pro- visions of the Act relating to the using and taking of lands to be observed in so far as they are appropriate to the expropriation of the lands and settling the compensation to be paid therefor ; section 192 of the Act has no application to such a case. — ^Notices were given, in compliance with sections 180, 193 and 194 of the "Railway Act," and, before any change had taken place in re- spect to the value of the lands to be taken, the raihvay company obtained an order of a judge permitting it to do so and took pos- session of the lands in question. — Held, that the title of the/ company to the lands, when consummated, must be considered as relat- ing back to the date when possession was taken and that the compensation payable therefor should be ascertained with reference to that time. — Judgment appealed from (6 Alta. li. R. 471) affirmed. Saskatchewan Land Co. v. Calgary & Edmonton Railway Go. 16. Eminent domain — ■ Public work — Ahandonment — Revesting land taken — Compensation — Estimating damages — Construction of statute — Jurisdiction of Exchequer Court — ■ " National Transconti- nental Railway Act," 3 Edw. VII. c. Tl — " Railway Act," R. .S. C. 1906, c. 37, s. g07 — " Exchequer Court Act," B. 8. C. 1906, c. HO, s. 20 — " Expropriation Act." R. 8. C. 1906, c. l/fS — " Railways and Canals Act," R. S. C. 1906, c. 35, s. ~ — Per cur- iam.} — Th« jurisdiction of the Exchequer Court of Canada is not. by the effect of the provisions of section 23 of the " Expropria- tion Act," limited to adjudication upon claims for compensation in consequence of expropriation proceedings in regard to which there had been only partial abandonment of the property taken, but extends as well to claims made in cases where the whole of the property has been abandoned. Decision ap- pealed from (15 Ex. C. R. 157) affirmed.— Under the provisions of section 23 of the "Expropriation Act," the person from whom revested land has been taken is entitled to compensation for damages sustained in con- sequence of the expropriation proceedings in the event of abandonment of the whole parcel of land as well as in the case of the abandonment of a portion thereof only. Iilington, J., duhitante. — Per Pitzpatrick, 493 EXPEOPEIATIOX. 494 C.J., and Davies, Idington and Brodeur, JJ. — ^Section 23 of the "Expropriation Act" applies in matters of expropriation for tlie purposes of tiie National Transcontinental llailway under the provisions of the " Na- tional Transcontinental Railway Act" : — Per Anglin, J. — It was so held in The King V. Jones (44 Can. S. C. R. 495) ; Duff, J., contra. — Per Duff, J. — The Minister of Rail- ways and Canals has not, by virtue of the 23rd section of the "Expropriation Act," authority to abandon lands compulsorily taken for the Eastern Division of the Na- tional Transcontinental Rajlway which have become vested in the Crown by force of the 13th section of the "National Transconti- nental Railway Act." Section 207 of the "Railway Act" is not Incorporated in the "National Transcontinental Railway Act" by force of the 15th section of that statute. — On the merits of the appeal, Davies, Id- ington and Brodeur, JJ., considered that, in the circumstances, the amount of the award tor damages made by the judgment appealed from (15 Ex. C. R. 157) was sufficient, and that the appeal should be dismissed. The Chief Justice and Anglin, J., held that the appeal should be allowed and the case re- mitted to the Exchequer Court for the pur- pose of estimating damages on the basis of allowing suppliants the value of the land at the date of expropriation less its value at the time of the abandonment. Duff, J., was of opinion that the suppliants were entitled to the full compensation tendered by the Crown for |the land taken, but, having ac- cepted the property as returned and agreed to credit its diminished value in part satis- faction of their claim, the appeal should be allowed and damages awarded estimated ac- cording to the difference between the ad- mitted value of the land to them when taken and its value at the date of the abandon- ment. Consequently, on equal division of opinion among the judges of the Supreme Court of Canada, the judgment appealed from (15 Ex. C. R. 157) stood affirmed, no costs being allowed. Giib v. The King, lii., 402. 17. Business premises — Special value — Mode of estimating compensation.'] — Where property expropriated is, owing to its loca- tion and adaptability for business, worth more to the ovi*er than its intrinsic value, he is not entitled to have the capital amount representing the excess added to the market value of the property. His proper compen- sation is the amount which a prudent man in the position of the owner would be will- ing to pay. Brodeur, J., dissenting. Judg- ment appealed against (34 Ont. L. R. 328) varied. Lalce Erie & Northern Railway Co. V. <8chooley, liii., 416. 18. Railways — Date for valua>tion of lands — Deposit of plan — Notice — Benefit to lands not taken — Set-off — Excessive com- pensation — Appeal — 6 Edw. VII. c. SO (Ont.) -^ 3 & Jt Geo. V.'e. 36 (Ont.).] — Where the expropriation of land is gov- erned by the provisions of the Ontario "Rail- way Act" of 1906, the date for valuation is that of the notice required by sec. 68 (1). The effect is the same under the Act of 1913 if the land has not been acquired by the railway company within one year from the date of filing the plan, etc. — The com- pensation for the land expropriated should not be diminished by an allowance for bene- fit by reason of the railway to the lands not taken, the Ontario "Railway Acts" making no provision therefor. — On appeal in a matter of expropriation the award should be treated as the judgment of a subordinate court subject to re-hearing. The amount awarded should not be interfered with un- less the appeal court is satisfied that it is clearly wrong, that it does not represent the honest opinion of the arbitrators, or that their basis of valuation was erroneous. — Where the land expropriated is an important and useful part of one holding, and is so connected with the remainder that the owner is hampered in the use or disposal thereof by tlie severance he is entitled to compensation for the consequential injury to the part- not taken : Holditch v. Ganor dian Northern Railway Co. (50 Can. S. C. R. 265 ; [1916] 1 A. C. 536) distinguished. — ^To estimate "the compensation for lands expropriated, the arbitrators are justified in basing it on a sub-division of the pro- perty if its situation and the evidence re- specting it shew that the same is probable. — Held, per Pitzpatrick, C.J. and Anglin, J., that to prove the value of the lands ex- propriated evidence of sales between the date of filing the plans and that of the no- tice to the owner is admissible, and also of sales subsequent to the latter date if it is proved that no material change has taken place in the interval. — Brodeur, J., dissent- ing, held that the damages should be re- duced ; that the arbitrators should have con- sidered only the market value of the lands established by evidence of recent sales In the vicinity. Toronto Suhurhan Railway Co. V. Everson, liv., 395. 4. Other Cases. 19. Canal lands — Condition suhsequent — Forfeiture — Mis-user. Wright v. The Queen, Gout. Cas. 151. 20. Expropriation of lands — Compensa- tion — Damages. Warhurton v. Attorney- Oeneral for Canada, Cout. 'Gas. 307. 21. Appeal — Order extending time — Jur- isdiction^R. S. C. (1886) c. 135, s. 42— Practice — Possession — Evidence — Expro- priation — Railways, xxxviii., 230. See Appeai,. See Tbespass. 22. Title to land — Dedication — Puilic highway — Presumption — User, Cam. Cas. 53. See Highway. 23. G-ocernment roAlway — Injury to pro- perty-z-Crossing at em'banhment and cutting — Riparian rights — Access to shore — Assess- ment of damages, Capa. Cas. 344. See Raixwats. 24. Title to land — Lease for years^—Pos- .^es.iion hy sub-tenant — Purchase at .sheriff's sale — Adverse occupation — Evidence ■ — 495 FELLOW SERVANT. 496 Gonveycmce of rights acquired — Compro- mise — Waiver — Estoppel, Cout. Cas. 158. See Title to Land. 25. Municipal corporation — Reservation for highway — Opening by-road — Damages, Cout. Cas. 210. See HiGHWAT. 26. Municipal corporation — Reservation for highway — Opening first front road — ■ Appropriation — Indemnity ■ — Award — Proces-verhal — Description vf lands and owners — Formal defects — Quebec Muni- cipal Code, arts. 16, 903, 906, 914, 918, ±11, 585. See Mttnicipal Corpokation. 27. Street railway — Assumption by muni- cipality — Principle of valuation — Operation in two municipalities — Compulsory taking. Berlin v. Berlin & Waterloo St. R. R., xlii., 581. See Tramway. 28. Lessor and lessee — Covenant to renew — Severance of term — Consent of lessor — Enforcement of covenant — Expropriation — Persons interested. Alex. Brown Milling Co. V. C. P. R., xlii., 600. See Lease. 29. Board of Railway G ommissioners — Jurisdiction — Private siding — Construc- tion of statute — "Railway Act" R. S. C. (1906) c. 37, ss. 222, 226, 311— Branch of railway — Res inter alios — Estoppel, xliv., 9. See Railways. 30. Agreement to fix compensation — Ar- bitration or valuation — Powers of referees — Majority decision, 1., 409. See Arbitration. 31. Railways — Arbitration — Appeal — Jurisdiction of court on appeal — Reference back to arbitrators — Proceedings by arbitra- tors — Receiving opinion testimony — 'Numljer of witnesses examined — "Alberta Evidence Act," 1910 — Alberta "Arbitration Act," 1909— Alberta "Railway Act," 1907— Set- ting aside award — Evidence — Admission in prior affidavit — Ascertaining value of lands, liii., 519. See Railways. 32. Municipal corporation — Statutory powers — Appointment of arbitrators — "Towns Corporation Act" — "Expropriation Act," 54 V. c. 28 (Que.)— Town charter — 3 Edw. VII. c. 69; 6 Edw. VII o. 50. Pouliot V. Fraserville, liv., 310. See Municipal Corporation. been made in a proceeding arising out of a criminal charge within the meaning of section 24 (g) of the Supreme Court Act, as amended by 54 & 55 Vict.' ch. 25 sec. 2, and, in such a case, no appeal lies to the Supreme Court of Canada. In re Woodhall (20 Q. B. D. 832) and Hunt v. The United States (16 U. S. R. 424) referred to. v (A peti- tion for leave to appeal to Privy Council was abandoned and dismissed, 25th July, 1905.) Gaynor And Greene v. United , States of America, xxxvi., 247. FACTOR. Sale of goods — Suspensive condition — Term of credit — Delivery — Pledge — Shipping bills — Bills of lading — Indorse- ment of bills — Notice — Fraudulent trans- fer — - Insolvency — Banking — Bailee re- ceipt — Brokers and factors — Principal and agent — Resiliation of contract — Revendica- tion — Damages — Practice — Pleading, xxxvi., 406. See Sale. FALSE ARREST. Malicious prosecution — Reasonable and probable cause — Bond fide belief in guilt — Burden of proof — Right of action — Dam- ,ages — Art. 1053 C. C. — Pleading and prac- tice, xl., 128. See Malicious Prosecution. FARM CROSSINGS. Railways — Jurisdiction of the Board of Railway Commissioners for Canada — Statu- tory contract — Railway Clauses Act, 1851 — Grand Trunk Railway Act, 1852 — "Rail- way Act, 1888" — "Railway Act, 1903"- Appeal to Supreme Court of Canada — Juris- diction — Controversy involved, xxxvi., 671. See Railways. FAULT. See Negligence. FEE. Appeal — Jurisdiction— Supreme Court Act — Duty or fee — Interest in land — Future rights, xli., 35. , See Appeal. EXTRADITION. Prohibition — Appeal — Jurisdiction — Supreme Court Act, s. 24 (g) — 54 d 55 Vict. c. 25, s. 2 — Construction of statute — Public policy — Criminal proceedings.] — A motion for a writ of prohibition to restrain an e^radition commissioner from investigat- ing a charge of a criminal nature upon which an application for extradition has FELLOVir SERVANT. Negligence of fellow servant — Operation of railway — Defective switch — Public work — Tort — Liability of Grown — Right of action — Exchequer Court Act, s. 16 (c) — "Lord GampbelVs Act"— Art. 1056 G. C, xl., 229. See Negligence. See Master and Servant. 497 FINDINGS OF FACT. FEMALE LABOUR. 498, Constitutional law — Criminal law — Legis- lation respecting orientals — Chinese places of business — Employment of white females — Statute— 2 Geo. F., o. 11 {Sask.)—"B.N.A. Act, 1867," ss. 91, 92 — Local and private matters — Property and civil rights — 'Natur- alized British subject — Conviction under pro- vincial statute, xlix., 440. See Constitutional Law. FENCES. 1. Railway crossing — Speed of train — Fencing track, xxxiv., 81. See Railways. 2. Title to land — Trespass — Possession — Right of action — Enclosure iy fencing, XXXV., 185. See Title to Land. 3. Negligence — Railway tracks — Fenc- ing crossings — Running of trains — Evidence — Reasonable inferences — Cattle guards — Protection for public, xxxvi., 180. See Railways. 4. Operation of railway — Straying animals — Negligence — Duty as regards trespassers on railway — Herding stock — Evidence — In- ferences "as to facts, xxxvi,, 641. See Negligence. 5. Negligence — Railway Act, 190S — S Edw. VII. c. 58, s. 257 — Animals at large— - Construction of statute — Words and terms — "At large upon the highway or otherwise" — Fencing of railway — Trespass from lands not belonging to owner of animals, xxxix., 251. See Negligence. FERAE NATURAE. Seorcoast and inland fisheries — Camadian waters — Local waters — Navigable waters — Open sea — "Railway belt" — Foreshore — Ferw natures — Legislative jurisdiction — Con- firmation of Statute, xlvii., 493. See Fisheries. FERRIES. 1. Constitutional law — Interprovincial and international ferries — Establishment or crea- tion of ferries — License — Franchise — Exclusive rights — Powers of Parliament— R. 8. C. c. 97—51 Vict. c. 23 {D.)—Acts by Governor in Council.'] — Chapter 97 R. S. C, "An Act respecting Ferries," as amended by 51 Vict. eh. 23, is intra vires of the Par- liament of Canada. — The Parliament of Can- ada has authority to, or to authorize the Governor-General in Council to establish or create ferries between a province and any British or foreign country or between two provinces. — The Governor-General in Coun- cil, if authorized by Parliament, may con- fer, by license or otherwise, an exclusive right to any such ferry. In re Interna- tional and Interprovincial Ferries, xxxvi., 206. 2. Negligence — Ferryboat wharf — Danger- ous way — Precautions for preventing acci- dents — Evidence — Findings of jury — Non- suit, XXXV., 693. See Negligence. FINAL JUDGMENT. Billman v. Imp. Elevator re Gt. Northern Con. Bateman v. Scott. St. John Lumber Co. V. Roy. Beauvais v. George. Montreal Tramways v. McGill. Jones v. Tucker, see liii. See Appeal, Judgment. FINDINGS OF FACT. 1. Negligence — Dangerous operations — Defective system — Concurrent findings — Common fault.] — The Supreme Court of Canada affirmed the unanimous judgments of the courts below, whereby it was held that defendant was liable in damages for injuries sustained by the plaintiff through' an accident which occurred in consequence of a defective system of blasting rocks with dynamite permitted by his foreman on works where the plaintiff was engaged by him in a dangerous operation. The Montreal Rolling Mills Co. V. Corcoran (26 Can, S. C. R. 595), and Tooke v. Bergeron (27 Can. S. C. R. 567) distinguished. — The plaintiff had been guilty of contributory negligence and damages apportioned according to the prac- tice in the Province of Quebec. Paquet v. Dufour, xxxix., 332. 2. Findings of jury — Questions of fact — Duty of appellate court.] — Where the ques- tion was one of tact, and the jury, on evi- dence properly submitted to them, accepted the evidence on one side and rejected that adduced upon the other, the Supreme Court of Canada refused to disturb their findings. (Q. R. 31 S. C. 870.) Windsor Hotel Co. V. Odell, xxxix., 336. See Practice. 3. Inferences by jury — Determining cause of accident — Evidence to support verdict — Practice.] — Where the jury, drawing infer- ences, adopted one of several theories re- specting the determining cause of the acci- dent through which the plaintiff's injuries were sustained, and there was evidence to support their finding, the court refused to disturb the verdict. Winnipeg Electric Ry. Co. V. Schwartz, xlix., 80. 4. Principal and agent — Evidence — Dis- closure.] — The Supreme Court of Canada refused to review the finding of the courts below that the defendants, while agents for the sale of the property in question, when purchasing it themselves under the contract tor re-sale, had discharged their duty to- wards the plaintiff in regard to disclosure of material facts relating to the value of the 499 FISHERIES. 500 property. Frith, v. Alliance Investment Co., xlix., 384. And see SpeciOTC Pebfoemance. 5. Mines and mining — Dangerous ways, gfc. — Inspection of pit — Employer and em- ployee — 'Negligence • — Evidence — Presump- tions — Reversal on findings of fact, xxxvi., 13. See Negligence. 6. 'Negligence — Railway crossing — Find- ings of jury — "Look and listen," xxxviii., 94. See Negligence. 7. Customs Act — Importation of cattle — ■ Smuggling — Clandestinely introducing cat- tle into Canada — Claim for return of deposit made to secure release of cattle seized — Evi- dence, xxxix., 12. ' See CtrsTOMS. 8. Negligence — Employer and employee — Dangerous machinery — Want of proper protection — Voluntary exposure — Findings of jury — Charge of judge — Assignment of facts — Practice — Assessment of damages, xxxix., 365. See Negligence. 9. Charge hy, judge — Finding of jury — New trial — Practice — New evidence on ap- peal, xxxix., 390. See PsACTiCE. 10. Promissory note — Illegal considera- tion — Smuggling transaction — Burden of proof — Findings of trial judge, xxxix., 675. Se^ Bills and Notes. 11. Employer and emplbyee — Improper appliances — Negligence — Proximate cause — Finding of jury — Evidence, xl., 396. See Negligence. 12. Life insurance — Warranty — Mis- statements — Concealments of material facts — Pleadin'g — Questions at issue — Amend- ment — Practice — Successful party moving against findings, Cam Cas. 463. See Insurance, Life. 13. Operation of raihvuy — Level-rrossing — Negligence — Statutory signals — Findings against weight of evidence — New trial — Practice, 8 Can, Ry. Cas. 61. See Negligence. And see Appeal ; Practice. 14. Construction of contract — Findings of trial judge — Appreciation of evidence^Be- versal on appeal, xli., 134. See Contract. 15. Action — Timher on pre-empted lands — Rights of pre-emptor — B.C. "Land Act," R.S.B.C, 1911, c. 129, ss. 77 et seq. and 1S2 — Issti^e on appeal — Practice — Negligence — Assessment of damages — Findings of trial judge, xlix.. 33. See Damages. 16. Negligence — Em-ployer's liaUlity — Ship labour — Disregard of rules — "Accident in course of employment" — Action — Claim iy dependents — Findings of jury — Evidence — Art. 10S4 C. C, xlix., 136. See Negligence. 17. Fisheries — Seizure of foreign ship — Fishing within territorial waters — Evidence — Jurisdiction of Canadian court — Concur- rent findings of fact, xlix., 180. See Fisheries ; Practice ; Appeal. FIKE-ESCAPE. Title to land — Construction of deed — Ease- ment appurtenant — Use of common lane ■ — Overhanging fire-escape — Encroachment on space over lane — Trespass — Right of action, xl, 188. ' See Deed. FIRE-GUARDS. Railways — Constitutional laio — Legis- lative jilris^iction — Application of statute — "The Prairie Fires Ordinance" — Con. Ord. N. W. T. (1898) c. 87, s. 2—N. W. T. Ord. 1903, (1st sess.) c. 25 and c. SO, {2nd sess.) — Works controlled iy Parliament — Operation of Dominion railway, xxxix., 476. See Railways. FISHERIES. 1. Illegal fishing — Seizure of vessel — Evi- dence of vessel's position.'\ — The American vessel "Kitty D," was seized by the Govern- ment cruiser "Petrel" for fishing on the Canadian side of Lake Erie. In proceedings by the Crown for forfeiture the evidence was conflicting as to the position of both vessels at the time of seizure and the local judge in admiralty held that the evidence did not establish that the vessel seized was in Canadian waters at the time. On appeal by the Crown : Held. Taschereau, C.J., dis- senting, that as the "Petrel" was furnished with the most reliable log known to mar- iners for registering distances and her com- pass had been carefully tested and correct- ed for deviation on the morning of the seiz- ure ; as the' "Kitty D." and the two tugs in her vicinity at the time whose captains gave evidence to shew that she was on the Ameri- can side carried no log nor chart and kept no log-book ; and as the local judge had misapprehended the facts as to the course sailed by the "Petrel," the evidence of the officers of the "Petrel" must be accepted and it established that the "Kitty D." had been fishing in Canadian waters and her seizure was lawful. The King v. The "Kitty D.." xxxiv., 673. 2. Canadian waders — Three-mile-mone — Fishing iy foreign vessels — Legislative jur- isdiction — Seizure on high seas — Pursuit he- yond territorial limit — International law — Constitutional law — B. N. A. Act, 18611, ». 91, s.-s. 12 — Sea-coast fisheries — R. S. 0. 91i. ss. 2, S, 4.] — ^Under the provisions of the "British North America Act, 1867," B. 91. s.-s. 12. the Parliament of Canada has 501 FORCE MAJEURE. 503 exclusive jurisdiction to legislate witt re- spect to fisheries within the three-mile-zone off the sea-coasts of Canada. — A foreign ves- sel found violating the fishery laws of Can- ada within three marine miles off the sea- coasts of the Dominion may be Immediately pursued beyond the three-mile-zone and law- fully seized on the high seas. Girouard, J., dissenting. The judgment appealed from (11 B. C. Rep. 473) was affirmed. The Ship "North" V. The King, xxxvii., 385. 3. Sea-coast 'and inland fisheries — Cana- dian waters — Tidal waters — WavigaMe waters — Open sea— B.C. "J^aihoay Belt" — Foreshores — Ferw natures — Legislative jur- isdiction — Construction of statute — ^7 V. c. H, ss. 2-6 (B.C.).] — ^In respect of waters within the "Railway Belt" of British Co- lumbia which are tidal it is not competent to the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or other- wise the exclusive right of taking fish which, as ferw naturw, are the property of nobody imtil caught. The public right t(j take such fish being subject to the exclusive con- trol of the Dominion Parliament it is im- material whether the beds of tidal waters passed or did not pass to the Dominion in virtue of the transfer of the "Railway Belt." — As to waters within the "Railway Belt" which although non-tidal are in fact navi- gable, the Legislature of British Columbia is likewise incompetent to make such grants. — ^It is not competent to the Legislature of British Columbia to authorize the Govern- ment of the Province to grant, in the open sea within a marine league of the^ coast of that province, by way of lease, license or otherwise the exclusive right of taking such fish (ferw naturm) . — In so far as concerns the authority of the Legislature of British Columbia to authorize the Government of the province to grant by way of lease, license or otherwise the exclusive right to take such fish (ferw naturw) , in tidal waters, there is no difference between the open sea within a marine league of the coast of the province and the gulfs, bays, channels, arms of the sea and estu.iries of the rivers within the province or lying be- tween the province and the United States of America. — Per Fitzpatrick C..J., and Davies, Idington, Duff and Brodeur, JJ., (Anglin, J., expressing no opinion on the point). — The beneficial ownership of the beds of navigable non-tidal waters with- in the "Railway Belt" in British Columbia, which were vested in the Crown, in the right of that province, at the time of the transfer of the "Railway Belt lands" to the Dominion of Canada, passed to the Domin- ion in virtue of the transfer. — In re British ColumMa Fisheries, xlvii., 493. 4. Seizure of foreign ship — Fishing within territorial waters — Evidence — Jurisdiction of Canadian court — Concurrent findings of fact.] — Where the evidence as to the place of the seizure of a vessel for unlawful .fish- ing within Canadian waters is unsatisfac- tory, and leaves it doubtful whether or not the vessel seized was, at the time of seizure, within the . three-mile limit of the Canadian coast, it would be unsafe and unjust to condemn her. — Per Fitzpatrick. C.J., and Anglin, J. — Where a charge of unlawful fish- ing within the territorial waters of Canada involves the condemnation of a foreign ship, the evidence must establish with accuracy and certainty the fact that the offence was committed within such territorial -yaters. — Per Duff, J. — ^Where condemnatioi^ involves the forfeiture of a ship belonging to an alien friend, as well as the jurisdiction of the trial court to award the condemnation and of the legislature 0(Ver the locus of the act complained of, the evidence must estab- lish' more than a probability barely suflBcient to sustain a verdict in any ordinary civil action in which none of these exceptional elements are present. — The judgment ap- pealed from was reversed, I3ington and Bro- deur, JJ., dissenting on the ground that the concurrent findings of both courts below ought not be disturbed on appeal. Carlson v. The King, xlix., 180. 5. Rivers and streams — Navigaile and floatatle waters — 0})structions to naviga- tion — Crown lands — Letters patent of grant ■ — Evidence — Collateral circumstances lead- ing to grant — Limitation of terms of grant — Title to land — Riparian rights — Arts. 400, m, 503 C. C, xxxfvii., 577. See.BivEBS and Streams. ' 6. Construction of statute — Fishery and game leases — Personal servitude — Possession — Use and occupation — Right of action — ■ Action en complainte — Renewed leases — Priority — Watercourses — Works to facilitate lumiering operations — Driving logs — Storage dams— Penning hack waters out of track of transmission — Damages — Rights of lessees — Injury to preserves — Injunction — Demoli- tion of works, xlv., 1. See GIame Laws ; Riveks and Stkeahs. FIXTURES. See Tbade Fixtures. FLOATABLE STREAMS. Title to lands — Grant from Crown — Im- plied reservations — Description — Inlet of navigable river — Crown domain — Puhlic law ■ — Construction of deed — Possession — Es- toppel — Evidence — Waiver, xxxiv., 603. See Rivees and Streams. FOOD. Construction of statute — "Quebec PuMic Health Act," R. S. Q., 1909, art, 3913— In- spection of food — Duty of health officers — Quality of food — Condemnation — Seizure — Notice — Effect of action by health officers — Controlling power of courts — Evidence — In- junction — Appeal — Jurisdiction — Question in controversy, xlvii., 514. See Statute. FORCE MAJEURE. See Vis Major. 503 POEESHOEE. 504 ; FORECLOSURE. 1. Title to land — Mortgage — Foreclosure — Equit£,l).le jurisdietion of cOurt — Opening up foreclosure proceedings — Construction of statute — "Real Property Act." R. 8. M. (1902), c. US— 5 & 6 Edw. VII. c. 75, s. 3, (Man.) — Equity of redemption — Oertifir- cate of title.']— XJndev the provisions of sec- tion 126/ of the Manitoba "Real Property Act," R. S. M. (1902), ch. 148, as amend- ed by section 3 of chapter 75 of the statute of Manitoba, 5 & 6 Edw. VII., the court has jurisdiction to open up foreclosure pro- ceedings in respect of mortgages foreclosed under sections 113 and 114 of the Act, notwithstanding the issue of a certificate of title, in the same manner and upon the same grounds as in the case of ordinary mortgages, at all events where rights of a third party holding the status of a ionS fide purchaser for value have not intervened. — Judgment appealed from (19 Man. R. 560) reversed. — Leave to appeal to Privy Council refused, 11th. July, 1911. WH'iams V. Box, xHv., 1. 2. Appeal — Jurisdiction — Discretionary order — Stay of proceedings — Final judgment — Controversy involved — R. S. C. c. 129, s. 16— R. 8. C. c. 135, s. 28, xxxvii., 173. See Appeal. 3. Assignment by mortgagor for benefit of creditors — Priorities — Assignment of claims of execution creditors — Redemption — Assign- ments and Preferences Act. s. 11 (On*.), xxxix., 229. See MOBTGAGE. 4. Powers of company — Sale of shares — Security hy mortgage — Subsequent creditor — Status — Jurisdiction. Hughes v. T7or. Elec. & Mfg. Co:, 1., 626. See Peactice. FOREIGN CORPORATIONS. Company law — Conflict of laws — In- corporation hy Dominion authority — Powers — B.C. "Companies Act" — Unlicensed extra- provincial companies — "Carrying on busi- ness" — Contract — Transactions beyond limits of province — Promissory notes — Right of action — Juristic disability — Construction of statute — (B.C.) 10 Edw. VII., c. 7, ss. 139, 166, 168. John Deere Plow Go. v. Agnew, xlviii., 208. See Company Law. FOREIGN RELATIONS. Fisheries — Seizure of foreign ship — i .„,„- ing ^ within territorial waters — Evidence — Jurisdiction of Canadian court — Concurrent findings of fact, xlix., 180. See Fisheries. tion — Seizure on high seas — Pursuit beyond territorial limit — International law — Consti- tutional lav) — Construction of statute , — B. N. A. Act. 1867, s. 91, s.-s. 12— R. 8. C. c. 9Jf, ss. 2, S, ^ — Sea-coast fisheries, xxvli., 385. See Constitutional Law. FOREMAN. 1. Negligence — Employer and employee — Disobedience of orders — Dangerous way, works and appliances, xxxv., 202. See Employer and Employee. 2. Mines and mining — Dangerous ways, works, etc. — Inspection of pit — Employer and employee — Evidence — Presumption — Reversal on findings of fact, xxxvi., 13. See Negligence. 3. Dangerous operations — Defective sys- tem — Findings of fact — Common fault — Ap- portionment of damages, xxxix., 332. See Negligence. 4. Evidence — Provincial laws in Canada — Judicial notice — Conflict of laws — Negli- gence — Common employment — Construction of statute — "Longshoreman" — "WorTcman," xxxix., 311. See Evidence; Negligence. FOREIGN VESSELS. Canadian waters — Three-mile-zone — Fish- ing by foreign vessels — Legislative jurisdic- FORESHORE. 1. Title to land — Title by possession — Nature of possession — Disclaimer — Evidence of title — Nullum tempus Act.l — ^In proceed- ings by the Dominion Government for ex- propriation of land on the Miramichi River the owner, T., claimed compensation for the part of the adjoining foreshore of which be had no documentary title. It was proved that in 1818 the original grantee had leased a part of the land and the privilege of erect- ing a boom for securing timber on the river in front of it; that his successors in title had, by leasing and devising it, dealt with the foreshore as owners ; that for over forty years from about 1840 the boom in front of it was maintained and used by the owners of the land ; and that at low tide the logs in the boom would rest on the solum. — Seld, reversing the judgment of the Ex- chequer Court (15 Ex. C. R. 177), Davies and Idington, J J., dissenting, that there was sufficient evidence of adverse possession of the foreshore by the owners of the adjoining -land for more than sixty years to give the present holder title thereto'. — Per Anglin, J. — From a continuous user for more than forty years, which is proved, a prior like user may be inferred. Moreover, from the evidence of assertion of ownership and possession since 1818 a lost grant might,' if necessary, be presumed. — Per Davies and Idington, JJ.— The placing and use of the boom was only incidental to the lumber business carried on at this place and the consent of the riparian owner thereto cannot be regarded as a laim of adverse possession. The presump- tion of lost grant was not placed and can- not be relied on ; moreover, a lost grant 505 EOEGEEY. 506 could not be presumed in the circumstances. — On application by the Minister of Justice for a disclaimer of damages for the taking of the foreshore the Government of New Brunswick passed an order in council stat- ing that the owner of the adjoining land taken claimed title to said foreshore ; that it had been used by the owners for booming purposes and otherwise for more than sixty yearS ; that the Attorney-General was of opinion that whatever rights the province may have had were extinguished and that no claim should be made by it to said fore- shore. — Held, per Duff, J. — This is an ad- mission touching the title to the foreshore by the only authority competent to make it and is evidence against the Dominion Gov- ernment in the expropriation proceedings ; that jt is prim& facie evidence of title by possession in T. ; and that there is nothing in the record to impair the strength of this primd facie case. Tweedie v. The King, lii., 197. 2. Sea-coast and inland fisheries — Cana- dian waters — Tidal waters — Navigable waters — Open sea — B.G. "Railway Belt" — 'Ferw natural — Legislative jurisdiction — Con- struction of statute, xlvii., 493. See Fisheries. 3. Canadian waters — Sea coasts — Pro- perty in foreshores — Harbours — Havens — Roadsteads — Ownership in beds — Construc- tion of statute — "B. N. A. Act, 1867" ss. 108, 109. Attorney Gen. v. Ritchie, Hi., 78. See Constitutional Law. 4. Title by possession — Nature of posses- sion — Evidence. Tweedie v. The King, lii., 197. See Title to Land. FORFEITURE. 1. Mis-user of canal lands — Condition subsequent. Wright v. The Queen, Cout. Cas. 151. 2. Title to land — Conveyance upon condi- tions — Public park — Trust — Forfeiture — As- signment of interest — Decree in favour of assignee — Champertous agreement, xxxv., 121. See Title to Land. 3. Vendor and purchaser — Sale of land — Payment by instalments — Specified dates — Time of essence — Penalty — Payment de- clared to be deposit, xllx., 360. See Vendor and Puechasek. FORGERY. 1. Bills and notes — Material alterations — Partnership — Mandate — Assent of parties — Liability of indorser — Construction of statute — "Bills of Exchange Act."] — R. in- duced H. to become a party to and indorser of a demand note for the purpose of raising funds and agreed to give warehouse receipts as security to the bank on discounting the note. It was arranged that the goods cov- ered by the warehouse receipts were to be held and sold on joint account, each sharing equally in the profits or losses on the trans- action. Subsequently R. altered the note, without the knowledge or consent of H., by adding thereto the Words "avec int^rSt d sept par cent par an," and falsely represented to the bank that H. held the warehouse re- ceipts as collateral security for his indorse- ment. A couple of months later H., for the first time, became aware that, the goods had never been purchased or placed in warehouse, that no warehouse receipt had been assigned to the bank, and did not, until some months later, know that the alteration had been made m the note. There was some evidence that H. had asked for time to make a settlement of the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made. — Held, by Idington Maclennan and Duff, JJ., that the instru- ment was a forgery and could not be ratiiied by an ex post facto assent. The Merchants Bank v. Lucas (18 Can. S. C. R. 704 ; Cam Cas. 275), and Brook v. Hook (L. R. 6 Ex. 89), followed.— Per Idington, J. — The cir^ cumstances of the case did not shew that there had been any assent to the alteration withm the meaning of section T35 of the "Bills of Exchange Act." — Per Maclennan, J; — The assent required to brin? an altered bill within the exception provided by sec- tion 145 of the "Bills of Exchange Act" R. S. C. (1906), cb. 119, must be given by the party sought to be bound at the time of or before the making of the alteration. — Held, also, the Chief Justice and Davies, J.. contra, that, in the special circumstances of the case, there was no partnership relation between the parties to the note for the pur- poses of the transaction in question and there could be no implied authorization for the making of the alteration in the note. — Per Fitzpatrick, C.J. — The transaction in question was a joint venture or particular partnership for the enterprise in contempla- tion of the parties and, consequently, R. had a mandate to make whatever asreement was necessary with the bank to obtain the funds and to provide for the payment of interest on the advances required to carry out the business. — Judgment appealed from (Q. R. 16 K. B. 191) reversed, the Chief Justice and Davies, J., dissenting. Hubert V. La Bangue Nationale, xl., 458. 2. Estoppel — Discount by bank — Notice — Duty to notify holder, xxxv., 133. See Banks and Banking. 3. Crown — Banks and banking — Forged cheque — Payment — • Representation by drawee — Implied guarantee — Estoppel — Acknowledgment of bank statement — Liabil- ity of indorsers — Mistake — Action — Money had and received, xxxviii., 258. See Banks and Banking. 4. Banks and banking — Forged cheque — Negligence — Responsibility of drawee — Payment — Mistake — Indorsement — Implied loarraniy — Principal and agent — Action — Money had and received — Change in position — Laches, xl., 366. See Banks and Banking. 5. Bill of exchange — Ratification — Estop- pel, Cam. Cas. 275. See Bills and Notes. 507 PEAUD. 508 FRANCHISE. 1. Construction of statute — Tollrbridge — Franchise — Exclusive limits — Measurement of distance — Encroachment — 58 Qeo. III. 0. 20 (L. 0.).]— The Act. 58 Geo. III. ch. 20 (L. C.) authorized .the erection of a toll- bridge across the River Etchemin, in the Parish of Ste. Claire, "opposite the road leading to Ste.'Therfise, or as near thereto, as may be, in the County of Dorchester," and by section 6, it was provided that no other bridge should be erected or any ferry used "for hire across the said River Etche-' min, within half a league above the said bl-idge and below the said bridge." — Held, Nesbitt and Idington, JJ., diSsenting, that the statute should be construed as intending that the privileged limit defined should be measured up-stream and down-stream from the site of th« bridge as constructed. — Per Nesbitt and Idington, JJ., that there was not any expression in the statute showing a contrary intention, and, consequently, that the distance should be measured from a straight line on the horizontal plane ; but, per Idington, J., in this case, as the location of the bridge was to be "opposite the road leading to Ste. Therftse," and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not be maintained. Rouleau v. Pouliot, xxxvi., 224. 2. Construction of railway — Injunction — Interested party — Public corporations — Franchises 'in puMifi interest — Lapse of charter powers — "Railway" or "Tramway" — Agreement as to local territory — Invalid contract — Public policy — Dominion Railicay Act — Work for general advantage of Can- ada — Quebec Railway Act — Municipal Code — Limitation of powers, xxxv., 48. See Railways. 3. Constitutional law — Intei — provincial and international ferries — Establishment or creation of ferries — License — ■ Exclusive rights— Powers of Parliament ^- Orders in Council — Dominion Acts in relation of fer- ries, xxxvi., 206. See Febries. 4. Abuse of powers — Operation of machin- ery — Continuing nuisance — Damages, xxxvi., 329. See Nuisance. 5. Waterworks — Statutory contract — Exclusive franchise — Condition of defeas- ance-_ — Forfeiture of monopoly — Demurrer — Bight of action by municipality — Rescis- sion — Art. 1065 G. G. — W Viet. c. 68 (Que., xl., 629. See Action. 6. By-law — Renewal — Approval by rate- payers. Ricard v. Yille de Grand 'Mire, 1.. 122 See Contract. FRAUD. 1. Insolvent lessor ■ — Fraudulent contri- vance^Purchase of leased property — Sheriff's I sale — Debtor and creditor.] — Even if a lessee is aware that his lesssor was embar- rassed at the time he took the lease, and subsequently when he purchased the leased property at sheriff's sale, that would not make the transaction fraudulent as against the lessor's creditors. — A creditor who was a party to the action against the lessor in which the property was sold in execution subject »to the lease and who did not oppose such sale can not, afterwards, contest pay- ment of the amount on the ground of fraud. Langelier t. Charlebois, xxxiv., 1. And see Lease. 2. Vendor and purchaser — Misrepresenta- tion — Fraud — -Error — Rescission of con- tract — Option of party aggrieved — Action to rescind — Actio quantum minoris — Latent defects — Damages — Warranty.] — An ac- tion will lie against the vendor to set aside the sale of real estate and to recover the purchase price on the grounO of error and of latent defects, even in the absence of fraud. In such a case, the purchaser alone has the option of returning the property and recovering the price or of retaining the pro- perty and recovering a portion of the" price paid ; he cannot be forced to content him- self with the action quantum minoris and damages merely, upon the pretext that the property might serve some of His purposes notwithstanding the latent defects. — ^When the ven^dor has sold, with warranty, a build- ing constructed by himself he must be pre- sumed to have been aware of latent defects and, in that respect, to have acted in bad faith and fraudulently in making the sale. — The vendor, defendant, in the agreement for sale, represented that a block of build- ings which he was selling to the plaintiff, had been constructed by him of solid si"one and brick and so described them in formal deeds subsequently executed relating to the sale. The walls subsequently began to crack and it was discovered that a portion- of the buildings had been improperly built of framed lumber filled in \and eased with stone and brick In a manner to deceive the purchaser. — Held, that the contract was vitiated on account of error and fraud and should be set aside, and that, as the vendor knew of the faulty construction, he was liable not only foa the; return of the price, but also for damages. — Held, further, that the action quantum minoris and for damajes does not apply to cases where contracts are voidable on the grounds of error or fraud, but only to cases of warranty against latent defects if the purchaser so elects ; the only recourse in cases of error and fraud being by rescission under art. 1,000 of the Civil Code. Pagnuelo v. Choquette, xxxiv., 102. 3. Constructive or equitable frauds — Title to land — Transfer by registered owner — "Land Titles Act, 18S4" — Caveat — Litigious rights — Pleading — Construction of stat- ute.] — The exception as to fraud referred to in the 126th section of the 'T^and Titles Act, 1894," means actual fraudulent trans- actions in which the purchaser has partici- pated and does not include constructive or equitable frauds. Syndicat Lyonnais du Klondyke v. McGrade, xxxvi., 251. And see Yukon Territory. 509 FEAUD. 510 4. Mines and mining — Vendor and pur- chaser — Sale of mining locations — Considera- tion in lump Slim — Separate valuations — Misrepresentation — Deceit and fraud — Mea- sure of damages. — Upon representations made by the vendor the plaintiffs purchased several mining locations, the consideration therefor being stated in a lump sum. In an action of fraud and deceit brought by the purchaser against the vendor the trial judge, in discussing the total consideration for the properties purchased, found that there was evidence to shew the values placed by the parties upon each of two of these properties as to which false and fraudulent represen- tations had been made, and which had turned out worthless or nearly so — Held, re- versing the judgment appealed from, the Chief Justice and Idington, J., dissenting, that the finding of the trial judge as to the consideration ought not to be disturbed upon appeal and that the proper measure of dam- ages, in such a case, was the actual loss sustained by the purchaser by acting upon the misrepresentations of the vendor in re- spect of the two mining locations in question irrespectively of the results of values yield- ed by the' other locations purchased at the same time and as to which no false repre- sentations had been made. Peek v. Derry (37 Ch. D. 541) followed. (Appeal to Privy Council, allowed, 9th May, 1907.) Syndicat Lyonnais du Klondylce v. Barrett, xxrvi., ^79. 5. Revocation of will — Testamentary capacity— Findings of fact — Practice — Im- proper suggestion — Undue influence — Capta- tion — Bounty taken hy promotei — Fraudu- lent representations — Evidence — Onus of proof.] — While the testator was suffering from a wasting disease of which he died shortly afterwards, the defendant, his bro- ther, took advantage of his weakness of mind and secretly obtained the execution of a will, in which he was made the principal beneficiary, by fraudulently suggesting and causing the testator to believe that his malady was caused and aggravated by the careless- ness and want of skill of his wife in the pre- p.nration of his food. The testator and his wife had lived together in harmony for a number of years, and, shortly after their marriage, had made wills by which each of them, respectively, had constituted the other universal residuary legatee and the testa- tor's former will, so mtide, was revoked by the will propounded by the defendant. — Held, that, as the promoter of the will, by 'njhich he took a bounty, had failed to dis- charge the onus of proof cast upon him to shew that the testator had acted freely and without undue influence in the revocation of the former will, the second will was in- valid and should be set aside. Mayrand v. Dussault, xxxviii., 460. And see Will. 6. Trade-mark — Infringement — Inventive term — Goined-word — Exclusive use — ColouraTile imitation — Common idea — De- scription of goods — Deceit and fraud — Passing-off goods.] — The hyphenated coined words "shur-on" and "staz-on" are not purely inventive terms but are merely corruptions of words descriptive of the goods (in this case, eye-glass frames) to which they were applied, intending them to be so described, and, therefore, they cannot properly be the subject of exclusive use as trade-marks. A trader using the term "'sta-zon" as de- scriptive of such goods, is not guilty of infringement of any rights to the use of the term "shur-on" by another trader as bis trade-mark, nor of fraudulently counterfeit- ing similar goods described by the latter term ; nor is such a use of the former term a colourable imitation of the latter term calculated to deceive purchasers, as the terms are neither phonetically nor visually alike. — The judgment appealed from (13 Ont. L. R. 144), was affirmed. Kirstein Sqns & Go. v. Cohen Bros., xxxix., 286. 7. Company — Sale of shares — Misrepre- sentation — Fraud — Action for deceit ■ — Accord and satisfaction.] — G., a director in an industrial company, transferred 200 shares of the capital stock to the president to be sold for him. The president instructed an agent to sell said shares along with some of his own -belonging to the company. The agent sold 25 shares of G.'s stock to J. G. representing, and believing, that it was trea- sury stock and getting a note for the price in favour of the company. The note was indorsed over to G. Later J. G. discovered that the stock he had bought was not trea- sury stock and bad some correspondence with the secretary of the company in which he complained of having been deceived by the agent. Eventually he gave a fotem on the policy. Imperial Fire Ins. Co. v. Bull (xviii., 697) ; Cam. Cas. 1. 9. Repkesentations and Wabeanxies. 14. Condition pf policy — Double insurnnce — Application — Representations and war- ranties — Substituted insurance — Condition precedent — Lapse of policy — Statutory conditions — Estoppel] — B. desiring to abandon his insurance against fire with the iSIanitoba Assurance Co. and, in lieu there- of, to effect insurance on the same property with the Royal Insurance Co., wrote the local agent of the latter company stating his intention and asking to have a policy m the "Royal" in substitution for his existing in- surance in the "Manitoba." On receiving an application and payment of the premium 563 INSURANCE, LIFE. 564 the agent issued an interim receipt to B. insuring the property pending issue of a, policy, and forwarding the application and the premium, with his report, to his com- pany's head office in Montreal where the en- closures were received and retained. The interim receipt contained a condition for non-liability in case -ef prior insurance un- less with the company's written assent, but It did not in any way refer to the existing insurance with the Manitoba Assurance Oo. Before receipt of a policy from the "RoyaJ" and while the interim receipt was still in force, the property insured was destroyed by fire. B. had not in the meantime formal- ly abandoned his policy with the Manitoba Assurance Go. The later policy was condi- tional to become void in case of subsequent additional insurance without the consent of the company. B. filed claims with both companies which were resisted and be sub- sequently assigned his rights to the plain- tiffs by whom actions were taken against both companies. — Held, reversing both judg- ments appealed from, (14 Man. L. R. 90) that, as the Royal Insurance Company had been informed, through their agent, of the prior insurance by B. when effecting the sub- stituted insurance, tbey must be assumed to have undertaken the risk notwithstanding that such prior insurance had not been for- mally abandoned and that the Manitoba As- surance iCo. were relieved from liability by reason of such substituted insurance being taken without their consent. — Held, further, that, under the circumstances, the fact that B. had made claims upon both the companies did not deprive him or his assignees of the right to recover against the company liable upon the risk. — ^The Chief Justice dissented from the opinion of the majority of the court which held the Royal Insurance Company liable and considered that, under the cir- cumstances, B. could not recover against either company. Manitoia Assurance Co. v. Whitla; Whitla v. Royal Insurance Co., xxxiv., 191. 15. Application — Misrepresentation — Materiality— Statutory conditions — Varia- tion.'] — In an action on a policy insuring a stock of merchandise the company pleaded — That the stock on hand at the time of the fire was fraudulently over-valued. That the insured in his application concealed a ma- terial fact, namely, that he had previously suffered loss by fire in his business. That the action was barred by a condition in the policy requiring it to be brought within six months from the date of the fire. This was a variation from the statutory condi- tion that it must be brought within twelve months. — Held, affirming the judgment of the Appellate Division (29 Ont. L. R. 356) that the evidence established the value of the stock at the time of the fire to be as represented by the insured; that the ma- teriality to the risk of the non-disclosure of a former loss by fire was a question of fact for the judge at the trial who pro- perly held it to be immaterial ; and ttat the question whether or not the variation from the statutory conditions was just and rea- sonable depended on the circumstances of the case, and the courts below rightly held that it was not. — Held, per Davifes, Anglin and Brodeur, JJ. — That the insured having sup- plied on demand, duplicate copies of the invoices of goods purchased between the last stock-taking and the time of the fire as well as copies of the stock-taking itself, was not obliged to comply with a further demand for invoices of, purchases prior to said stock- taking. Anglo-American Fire Insurance Oo. V. Hendry, xlviii., 577. 10. Re-insueance. 16. Contract of re-insurance — Trade cus- tom — • Conditions — "Rider" to policy — Limitation of actions — Commencement of prescription — Art. 2236 C. O.]— A contract of re-insurance consisted of a blank form of policy of fire insurance in ordinary use, with a "rider" attached setting forth the conditions of re-insurance. The policy con- tained a clause providing that no action should be maintainable thereon unless com- menced within twelve months next after the fire. The "rider" provided that the re- insurance should be subject to the same risks, conditions, valuations, privileges, mode of settlement, etc., as the original policy and that loss, if any, should be payable ten days after presentation of proofs of pay- ment by the company so re-insured. — Held, reversing the judgment appealed from, Girouard, and Nesbitt, JJ., dissenting, that there was no incongruity between the limi- tation of twelve months in the form of the main policy and the condition in the rider agreement as to claims for re-insurance and, consequently, that the action for re- covery of the amount of the re-insurance was prescribed by the conventional limita- tion of twelve months from the date of the fire occasioning the loss. Victoria-Montreal Fire Insurance Co. v. Home Insurance Go. of New York, xxxv., 208. 11. Other Cases. 17. Good plans — ■ Revendication — Mutila- tion hy agent — Damages, xxxvi., 7. See Evidence. 18. Electrical installations — Cause of fire — Defective transformer — Improper instal- lations — Onus of proof, xxxvii., 676. See Negligence. 19. Liquidation of insolvent corporation — Distribution and collocation — ■ Privileged claim — Expenses for preservation of estate — Fire insurance premiums — Arts. STl, S7S, J,19, lOiS-me, not, 1994, 1996, 2001, 2009 0. C, xxxix., 318. See Company. INSURANCE, LIFE. 1. Condition of Policy, 1-2. 2. conteact, 3. ?>. Friendly Societies, 4-5. 4. Misrepresentation, 6-9. 5. Premiums and Assessments, 10-11. 6. Other Cases, 12-18. 565 INSUEANCE, LIFE. 566 1. Condition of Policy. 1. Delivery of policy — Oondition — instructions to agents.} — D. applied to an insurance agent in St. John, K.B., for $1,000 insurance on her life. The ap- plication was accepted, the premium paid, and the policy forwarded to the agent, witb instructions to reconcile a discre- pancy between the application and the doctor's return as to D.'s age before deliver- ing it. The agent then ascertained that the age of 64 given in the application should have been 65, and obtained from D. the ad- ditional premium required for a $1,000 policy at that age. A new policy was sent by the head office to the agent, who did not deliver it on hearing that D. was ill. She died a few days later. The beneficiary brought action for specific performance of the contract to deliver -a policy for $1,000 or for payment of that amount. A condi- tion of the policy sent to the agent was that it should not take' effect until delivered, the first premium paid, and the ofiicial receipt surrendered during the lifetime and con- tinued good health of the assured. — Held affirming the judgment of the Supreme Court of New Brunswick (43 N. B. Rep. 580) and of the trial judge (43 N. B. R«p. 325), Davies and Brodeur, JJ., dissenting, that there was no completed contract of in- surance between the company and D. at the time of the latter's death, as the condition as to delivery of the policy and surrender of the receipt during the lifetime and con- tinued good health of the assured was not complied with. North America Life Assur. Co. Y. Elson (33 Can. S. C. R. 383) dis- tinguished. Donovan v. Excelsior Life Inr surance Co., liii., 539. 2. War risk — Service in South Africa — Extra premium — Special condition — Con- sideration for premium.] — Policies on the lives of members of the fourth contingent for the war in South Africa were issued and accepted on condition of payment in each case of an extra annual premium " whenever and as long as the occupation of the assured shall be that of soldier in army of Great Britain in time of war." Each policy also provided that the assured "has hereby consented to engage in military ser- vice in South Africa in the army of Great Britain any restriction in the policy contract to the contrary, notwithstanding." The re- strictions were against engaging in naval or military service without a permit and tra- velling or residing in any part of the torrid zone. The contingent arrived in South Africa after hostilities ceased and an action was brought aginst the company for return of the extra premium on the ground that the insured had never been soldiers of the army of Great Britain in time of war. — Held, Girouard and Davies, JJ., dissenting, that the risk taken by the company of the war continuing for a long time and the in- surance remaining in force so long as the annual premiums were paid was a sufficient consideration for the extra premium and it could not be recovered back. — Held, also, that the permission to engage in South Africa was a waiver of the restriction against travelling in the torrid zone. (Leave to appeal to Privy Council refused, July, 1904.) Provident Savings Life Assurance Society of New York v. Bellew, xxxv., 35. 2. Contract. 3. Life insurance — Wagering policy — Mis- representation — Questions for jury — Arts. 424, 427 G. P. Q.— Charge to jury— New trial.'] — -The assignments of facts for the jury were settled in conformity with arts. 424 and 427 C. P. Q., but were subsequently amended at the trial. Judgments were en- tered for the plaintiffs, on the answers by the jury (Q. R. 16 K. B. 178), and the ap- pellant relied on misdirection and the irre- gularity of the amendment of the assign- ment of facts, and asked for a new trial. Without calling upon counsel for respon- dents, the appeal was dismissed. Lamothe V. North America Life Assce. Co., xxxix., 323. 3. Fbiendly Societies. 4. Benefit association — By-laws and regu- lations — Transfers between lodges — Mem- ber in good standing — Regularity of affilia- tion — Payment of dues amd assessments — Evidence — Presumption — Waiver.] — Where the constitution of a benefit associa- tion provides that members shall not be transferred from one lodge to another unless all dues and assessments have been paid, up to and including those for the month in which the application for affiliation is made, the fact -that, upon such an application, a member was transferred from one lodge to another involves the presumption as against the association that the transfer was regu- larly made when the member was in good standing and in accordance with the regula- tions. Ancient Order of United Workmen of Quebec v. Turner, xliv., 145. 5. Benevolent society — Contract — Pay- ment of assessments — Extension of time — Rules and regulations — Place of payment — Demand — Default — Suspension — • Author- ity to waive conditions — 'Conduct of officials —Estoppel — Compamy la/w — Arts. 11.52, 1164, C. C] — ^By the constitution and by- laws of a mutual benevolent society death indemnities were assured to members who, in order to maintain good standing and entitle their beneficiaries to the indemnity, were, thereby, required to make prompt payments of monthly assessments within ^thirty days from the dates when they be- came payable. In the subordinate lodge of which C. was a member it had for some time been the practice of its financier to receive such payments fifteen days later than the thirty days so limited and, if then paid, members were not reported as having been in default and, ipso facto, under sus- pension according to the regulations pro- vided by the constitution and by-laws in- corporated in the certificate whereby the indemnity was secured. For several years the financier of the subordinate lodge had habitually received these payments from C. at his residence, on or about the last day of this extended term. Seven days after the expiration of the thirty days for pay- 567 IJSTSUEAXCE, LIFE. 568 ment of the last assessment, and while it was still unpaid, C. died and, on the follow- ing day, the overdue assessment was paid to the local financier and a receipt therefor granted by him. The Grand Treasurer of the Society refused to accept this payment on the ground that C. was then under suspension and was not a member in good standing at the time of his death. — Held, affirming the judgment appealed from (Q. R. 21 K. B. 541), Duff, J., dissenting, that by the course of conduct in the subordinate lodge, of which the Grand Lodge was aware, the condition as to prompt payment had been waived, that C. remained in good stand- ing until the time of his death and that the death indemnity was exigible by the bene- ficiaries. Wing V. Harvey (5 DeG. M. & G. 265 ; 43 Eng. R. 872) ; Tattersall v. Peo- ple's Life Ins. Co. (9 Ont. L. R. 611) ; Bucklee v. United States Annuity and Trust Co. (18 Barb. 541) ; Insurance Go. v. ^7olf (95 U. S. R. 336) ; and Redmond v. Cana- dian Mutual Aid Association (18 Ont. App. R. 335), referred to. — Per Fitzpatrick, C..T., and Brodeur, J. — As no place of payment had been indicated, according to the law of the Province of Quebec (art. 1152 C. C), assessments were payable at the domicile of the assured; consequently, owing to the practice which had prevailed as to the re- ceipt of payment at C.'s domicile and be- cause no demand for payment had been made at such domicile, there had been no default on the part of 'C. and he had not become suspended at the tiftie of his death. — Per Duff, J., dissenting. — Neither the Grand Lodge nor the subordinate lodge or their officials had power to waive the conditions as to payment prescribed by the constitution and by-laws and the certificate of member- ship of C. ; these instruments constituted the contract of insurance and sufficiently desig- nated the office of the financier of the sub- ordinate lodge as the place where payment of the assessments was to be made ; even if article 1152 C. 0. applies, no notification was given or proof made conformably to article 1164 C. C, and consequently, failure to make payment of the assessment due within the thirty grace days, at the office of the subordinate lodge, worked a default and, ipso facto, the suspension of membership, and, therefore, C. was not in good standing at the time of his death so as to' entitle the beneficiaries to the indemnity according to the regulations of the society. — Held, fur- ther, per Duff, J. — ^As the member must be presumed to know the limitations of the au- thority of the Grand Lodge, the subordinate lodges, and the officials of each of them, as determined by the constitution and by-laws, the ostensible authority of officials cannot, for any relevant purpose, be of wider scope than the actual authority which is defined specifically and exhaustively by the consti- tution. Royal Guardians v. Clarice, xlix., 229 J. MiSEEPKESENTATION. 6. Warrantii — ilisstatement and conceal- ment in application — Pleading — Questions at issue — Findings of fact — Amendment — Practice — Successful party moving against findings.'^ — The action was to recover in- demnity payable under a bond issued by the defendants to W. The defence alleged that deceased warranted that he was confined to his house by sickness five years before the application when in fact he had been con- fined to the house by a severe attack of apoplexy within four years of the applica- tion. All the issues were found 'by the trial judge in favour of the plaintiffs except that as to the date of the attack of apoplexy, and, oh the ground that there was misrepresen- tation as to this fact, he gave judgment for the defendants. On appeal to the full court this judgment was set aside and judgment directed to be entered for the plaintiffs. On appeal to the Supreme Court of Canada :— Held, Gwynne and Patterson, JJ., dissent- ing, affirming the judgment appealed from (20 N. S. Rep. 347), that there was no statement made by the deceased, although so found at the trial, that the attack of apoplexy occurred five years before the application, nor was that issue raised by the pleadings. — Per Strong, J., that, upon the evidence, the merits of the case were not such as to warrant the Supreme Court in allowing a new defence by way of amend- ment to be set up at this stage. — Held, per Patterson, J., that the defendants' pleading must be treated as asserting that the do- ceased untruly represented that he had not been confined to his house within five years, and to hold otherwise would be opposed to the spirit of the Judicature Act and would be exceeding the strictness which obtained in the days of special demurrers. — Per Pat- terson, J., the judgment at the trial being in their favour, the defendants could not have moved against it on the ground that the other issues ought to have been found in their favour. Mutual Relief Society of Nova Scotia v. Webster (xvi., 718) : Cam. Cas. 463. 7. Mutual life insurance — Natural pre- mium system — Level premium — Mortuary calls — Rate of assessment — Rating at at- tained age — Fraud — Puffing statements — Warranty — Misrepresentation — Acquies- cence — Mistake — Rescission of contract — Estoppel.'] — A. took out a policy on his life in a mutual association relying on state- ments contained in circulars issued by the association stating that interest on the re- serve fund would be sufficient to cover in- creases in the death rate and make the policy, after a certain period, self-sustain- ing. The rates having been increased, A. paid the assessments Jor some years under protest and then allowed his policy to lapse and sued for a return of the payments he had made with interest and for a decision that the contracts were void ah initio. — Held, Sedgewick and Nesbitt, JJ., dissent- ing, that the statements in the circulars only expressed the expectation of the man- agers of the association as to the future and did not prevent the rates being in- creased in the discretion of the directors. The Mutual Reserve Fund Life Association V. Foster (20 Times L. R. 715) distin- guished. The Provident Savings Life As- surancc Society v. Mowat (32 Can. S. C. R. 147) referred to. — Per Tasehereau, C.J. — As the contracts of A. with the association were only voidable he was not entitled to be repaid the premiums for which he had 5,69 mS,Ul^\NCE, LIFE. i5.?0 received value by being insured as long as the contracts were in force. Birnardin v. La Reserve Mutuelle des Etats-Unis (Cour. d'Appel. Paris, 10 ffiv. 1904 ; Gaz. des Trib. 26 ffiv. 1904) , referred to. Angers v. Mutual Reserve Fund Life Association, xxxv., 330. 8. Endowment policy — Surrender — Cash value — Action for rescission — Representa- tion by agent — Inducement to insure.^ — The life of S. was insured by a twenty year en- dowment policy which provided that at the end of the term he could exercise one of three options including that of surrender of the policy on receipt of a sum to be ascer- tained in a specified manner. About ten months before the policy expir.ed he wrote to the company asking for the amount pay- able on surrender, which was promptly fur- nished, and more than a year later he brought action for a larger cash payment, and in the alternative for rescission of the contract for insurance and return of the premium paid with interest, alleging that wien he applied for the insurance he was informed by the agent of the company that the cash value of the policies surrendered would be the larger amount claimed. The trial judge directed rescission and return of the premiums as prayed. His judgment was reversed by the Court of Appeal. — Held, affirming the judgment of the Court of Ap- peal (23 Ont. li. R. 559) that as S. did not swear nor the evidence he adduced estab- lish that he was induced to enter into the contract by the representations of the agent as to the sum payable on surrender, and it might fairly be inferred that had he been giv'en the true figures he would still have taken the policy, his action must fail. Shaw V. Mutual Life Ins. Co., xlvi., 606. 9. Fire insurance — Change of risk — Evi- dence — Vse of gasoline. Anglo-American Fire Ins. Co. v. Morton, xlvi., 653. 5. Premiums and Assessments. 10. Condition of policy — Premium note — Payment of premium.^ — When the renewal premium on a policy of life assurance be- came due, the assured gave the local agent of the insurance company a note for the amount of the premium, with interest added, which the agent discounted, placing the pro- ceeds to 'his own credit in his bank account. The renewal receipt was not countersigned nor delivered to the assured and the agent did not remit the amount of the premium to the company. When the note fell due it was n6t paid in full and a renewal note was given for the balance which remained unpaid at the time of the death of the as- sured. The conditions of the policy declared that if any note given for a premium was not paid when due the policy should cease to be in force. — Held, aflirming the judg- ment appealed from (38 N. S. Rep. 15), Davies and Maclennan, JJ., dissenting, that the transactions that took place between the assured and the agent did not constitute a payment of the premium, and that the policy had lapsed on default to meet the note when it became due. The Manufacturers Accident Ins. Co. V. Pudsey (27 Can. S. C. R. 374) distinguished ; London and Lancaster Life Assurance Go. v. Fleming ([1897] A. C. 499) referred to. Hutching s v. National Life Assurance Co., xxxvii., 124. 11. Non-payment of premiums — Misrepre- sentation to insureU — Estoppel.'i — P., in payment of premiums oy a life policy, gave his note for one instalment and an overdue balance of another. Shortly before it ma- tured an official of the company, specially authorized to deal with the matter, informed P. that his policy had lapsed owing to the inclusion in the note of the overdue balance which was against the company rules. In consequence of this representation P. did not pay the note nor tender the amount of another instalment falling due before his death. In an action on the policy by the beneficiary no rule of the company was proved avoiding the policy as stated. — Held, affirming the judgment appealed against (48 N. S. Rep. 404), Fitzpatrick, C.J., and Davies, J., dissenting, that the company was estopped by conduct from claiming that the policy lapsed on non-pay- ment of the note and subsequent instalment. — Per Davies, J., that the non-payment of the note could not be relied on as avoiding the policy, but the estoppel did not extend to the failure to pay the quarterly premium which afterwards became due. Caj)ital Life Assurance Co. v. Parker, li., 462. 6. Other Cases. 12. Construction of policy — Payment of premium — Time for payment — Forfeiture. Pense v. The Northern Life Assurance Co., xlii., 246. 13. Payment of premiums — Thirty days' grace — Death of insured after premium due —^Estoppel. People's Life Ins. Co. v. Tat- tersall, xxxvii., 690. 14. Misrepresentation — Findings of jury — Evidence of experts — Glasses of opinions. Mutual Reserve Fund Life Association v. Dillon, Cout. Cas. 339. 15. Evidence — Verdict — New trial — Life insurance — Accident policy — Con- tract — ■ Conditions — Misrepresentations — Non-disclosures — Warranty — Words and terms — Rule of interpretation, xxxv., 266. See Evidence ; Insurance ; xYccidext. 16. Constitutional law — Railway com- pany — Negligence — Agreements for ex- emption from liability — Power bf Parlia- ment to prohibit, xxxvi., 136. 'See Railways. 17. Policy — Countersignature — Evidence — Admission of agent. Cam. Cas. 154. See Evidence. 18. Ranhcays — Negligence — Contribu- tory negligence — Accident at crossing — Deduction of insuratwe from damages — Practice — Appeal — Equal division of opinion — Costs, Cam. Cas. 228. See Negligence. 571 INTEREST, 678 INSURANCE. MARINE. 1. Loss of freight — Detention iy ice- Perils insured againsi.] — A vessel on her way to Miramichi, N.B., was chartered for a voyage from Norfolk, Va., to Liverpool with cotton. She arrived at Miramichi on November 25th and sailed for Norfolk on the 29th. Owing to the lateness of the season, however, she could not get out of the bay «and she remained frozen in the ice all winter and had to cancel her charter-party.— iTeid, reversing the judgment of the Supreme Court of New Brunswick (24 N. B. Rep. 421), Henry, J., dissenting, that the- lo.-ss occasioned by the detention from the ice was not a loss by "perils of the seas" cov- ered by an ordinary marine policy. — II eld, per Henry, J. — Contracts of insurance on freight differ essentially in many respects from those on vessels or goods, and when chartered freight is insured and lost through any of the perils insured against it is not necessary to shew that the vessel was dam- aged ; that the insured is entitled to re- cover if the vessel is detained by any of the perils insured against whereby the chartered freight is lost. — Per Henry, J. — ^When a contract of affreightment cannot be carried out by reason of stress of weather or other causes beyond control within the time con- templated by the parties, there being no fault on either side, both parties are dis- charged; and if under such circumstances the parties agree to cancel the contract, it cannot be treated as a voluntary cancella- tion that will disentitle the insured to re- cover upon his policy of insurance against loss of freight. Great Western Ins. Co. v. Jordan (xiv., 734) ; Cam. Cas. 86. 2. Mutual company — Cancellation of policy — Return of unearned premium — Can- cellation by operation of law.^ — A mutual insurance company incorporated under the laws of the State of Massachusetts issued marine policies in favour of parties in Nova Scotia who gave notes for the premiums. The policies provided for a return of pre- miums "for every thirty days of unexpired time if this policy be cancelled." Before any of the premium notes matured the policyholders were notified that the com- pany had been put into liquidation at the instance of the Insurance Conimissioner, the notice stating that the legal effect was " to cancel all outstanding policies." In an ac- tion by the receiver in the company's name to enforce payment on the notes : — Meld, affirming the judgment appealed against (46 N. S. Rep. 7) that the decision of the case must be governed by the law of Massa- chusetts ; that the holder of a policy in a mutual company being both insurer and insured the notes sued on were assets for distribution among the creditors ; and the receiver was, therefore, entitled to recover the full amount. — Meld, also, that a cancel- lation resulting from the action of the State was not a cancellation within the meaning of the above clause providing for return of premium. Pickles v. China Mutual Ins. Co.; Smith V. China Mutual Ins. Co., xlvii., 429. 3. Appeal — Court of Review — Appeal to Privy Council — Appealable amount — Amendment to statute — Application — -No- tice of appeal — No trial — Constructive total loss — Trial by jury — Misdirection, Sedgioick V. Montreal, xli., 639. 4. Abandonment — Repmrs — Boston clause ^-Findings of jury — New trial — Practice — Evidence taken by commission — Judicial dis- cretion. Ins. Co. of North America v. Mc- Leod, Gout. Cas. 214. INTERCOLONIAL. RAItWAY. Government railway — Operation over other lines — Agreement for running rights — Extensions and branches — "Public work" — Construction of statute — "Government Rail- ways Act" — R. S. C. 1906, c. S6, s. 80— "Exchequer Court Act" — R. S. C. 1906, c. UO, s. 20 (c), xl., 431. See Rah-wats. INTERDICTION. Will — Testamentary capacity — Oaptation — Suggestion — Undue influence — Evidence — Onus of proof, xli., 391. See Wnx. INTEREST. 1. Bills and notes — Instalments of interest — Transfer after defamlt to pay interest — "Overdue" bill — Notice — Holder in good faith — Bills of Exchange Act — Common law rMie.]— Where interest is made payable periodically during the currency of a pro- missory note, payable at a certain time after date, the note does not become overdue within the meaning of sections 56 and 70 of the "Bills of Exchange Act," merely by default in the payment of an instalment of such interest. — The doctrine of constructive notice is not applicable to bills and notes transferred for value. — Judgment appealed from reversed, Idington and Maclennan, JJ., dissenting. (Leave to appeal to Privy Council was refused, 18th July, 1908.) Union Investment Co. v. Wells, xxxix., 625. 2. Constitutional Iww — Liabilities of pro- vince at confederation — Special funds — -Rate of interest — Trust funds of debt — Award of ISIO-B. N. A. Act, 1867, ss. Ill and m, xxxix., 14. See GoNSTiTUTiONAi. Law. 3. Appeal- — JurisdAction — Amount in coii- troversy — Adding interest and costs. Cout. Cas. 30. See Appeal. 4. Controverted election- — Abatement of appeal — Dissolution of Parliament — Re- turn of deposit — Practice, Cout. Cas. 314. See Election Law. 5. Breach of trust — Interest on bonds — Unlawful acts by Crown officers — Ultra vires — Withholding interest from Crown — 573 INVENTION. 574 Necessity of impleading other interested parties — Practice, Gout. Oas. 316. See Practice. 6. Appeal — Jurisdiction — Amount i» con- troversy — Adding interest to judgment — Constriiction of statute, Gout. Gas. 318. See Appeal. 7. Appeal— Amount in dispute — Oostt — Vollateral matter, xli., 43. See Appeal. I 8. Appeal — Jurisdiction — Amount in con- troversy — Addition of interest — Amount of verdict — Stay of execution. Toronto B. B. V. Milligan, xlii., 238. See Appeal. 9. Constrv^ction of statute — 'N. W. T. Con. Ord. 1898, c. SJf — Bxtra-judidal seiaure — Chattel mortgage — Sale through iailiff — ■ Excessive costs— -Penalty — Waiver — "Bank Act," B. S. 0. X906, 0. S9, ». 91-~Oontraot — Excessive interest — Settlement of account stated—Voluntary payment — Surcharging and falsifying — Beduction of rate — Bemoval of mortgaged property — Negligence — Meo- sure of damages, xliv., 473. See Chattel Mortgage. 10. "Expropriation Act," B. S. C. 1906, c. 143, ss. 8, 23, 31 — Alandonment of pro- ceedings — Compensation — Allowance of in- terest — Construction of statute — -Practice — Taxation of costs — ■ Solicitor and client — Reimbursement of expenses — Interpretation of formal judgment — Beference to opinion of judge. Quebec Jacques Gartier v. The King, li., 594. See Expropriation. INTERNATIONAL LAAV. Canadian waters — Three-mile-zone — Fishing by foreign vessels — Legislative jur- isdiction — Seizure on high seas — Pursuit beyond territorial limit — Constitutional law — Construction of statute — B. N. A. Act, 1891, s. 91, S.-S. 12— B. 8. C. c. 94, ss. 2, S, 4 — Sea-coast fisheries, xxxvii., 385. See Constitutional Law. INTERVENTION. 1. Appeal — Jurisdiction — Intervention — Matter in controversy — Judicial pro- ceeding — B. 8. C. c. 135, s. 29.] — An inter- vention filed under the provisions of the Code of Civil Procedure of the Province of Quebec is a "judicial proceeding" within the meaning of section 29 of the Supreme and Exchequer Courts Act, and a final judgment thereon is appealable to the Supreme Courts of Canada where the matter in controversy upon the intervention amounts to the sum or value of $2,000 without reference to the amount demanded by the action in which such intervention has been filed. Walcott v. Bobinson (11 L. C. Jur. 303) ; Miller v. D4chine (8 Q. L. R. 18) ; Turcotte v. Dan- sereau (26 Can. S. C. R. 578) ; and King V. Dupuis (28 Can. S. C. R. 388) followed. The Atlantic and North-West Bailway Co. V. Turcotte (Q. R. 8 Q. B. 305) ; Allan v. Pratt (13 App. Cas. 780), and Kinghorn v. Larue (22 Can. S. C. R. 347) distinguished. — • Girouard, J., dissented. — On an equal division of opinion among the judges, who heard the case on the merits of the appeal, the appeal stood dismissed without costs. Cot4 v. The James Bichardson Co., xxxviii., 41.' 2. Interlocutory proceeding — Final judg- ment, XXXV., 12. See Appeal. INTERPRETATION. Eviidence — ■ Verdict — Neio trial — Life Insurance — Accident policy — Contract- Conditions — Misrepresentation — Non-dis- closures — ■ Warranty — Words and terms — Rules of interpretation, xxxv., 266. See Evidence. And see Statute. INTRUSION. 1. Crown lands — Adverse possession — Grant during — Information for intrusion —21 Jac. I. oh. 14 (Imp.), xxxiv., 533. See Crown Land. 2. Constitutional -law — Legislative juris- diction — Crown lands — - Terms of union (B:C) Art. 11 — Bailway aid — Provincial grant to Dominion — Provincial legislation — W a/ter-records within "Bailway Belt" — Con- struction of statute — B. N. A. Act, 1867, ss. 91, 109, 117, 146— Imperial 0. C. 16th May, 1871 — "Water Clauses Consolidation Act, 1897," B. S. B. G. c. 190. Burrard Power Co. V. The King, xliii. 27. See Constitutional Law. INTERPRETATION OF TERMS See Words AND Phrases. INVENTION. Patent of invention — Anticipation.] — Canadian patent No. 79392 for improve- ments in candy-pulling machines granted on Feb. 17th, 1903, declared void for want of invention having been anticipated by earlier inventions in the United States. — Judgment of the Eixchequer Court (10 Ex. C. R. 378), reversed on this point. Hildreth v. MoCor- mick Manufacturing Co., xli., 246. JUDGE. 576 INVOICE. ib'aie of goods—Condition as to prices — Lost invoices — Secondary evidence — Waiver — Breach of contract — Damages, xlvii., 289. See Sale. IRRIGATION. 1. Rivers and streams — B. C. "Land Act, 1884," and amendments — Pre-emption of agricultural lands — Water records — Ap- purtenances — Abandonment- of pre-emption — Lapse of water record.'] — Where holders of separate pre-emptions of agricultural lands, under the provisions of the "Land Act, 1884," 47 Vict. ch. 16 (B.C.), and the amendment thereof, 49 Viet. eh. 10 (B.C.), with the object of vesting their respective pre-emptions in themselves as partners, sur- rendered the separate pre-emptions to the Crown, and on the same day re-located the same areas as partners, obtaining a pre- emption record thereof in their joint names, . the joint water record previously granted to them, as partners, in connection with their separate pre-emptions, cannot be con- sidered to have been abandoned. The effect of the transaction caused the areas to be- come unoccupied lands of the Crown, within the meaning of the statute, and, upon their re-location, the water record in connecticin therewith continued to subsist as a right appurtenant to the joint pre-emption. Judg- ment appealed from (13 B. C. Rep. 77) re- versed, the Chief Justice and Duff, J., dis- senting. Vaughan v. Eastern Townships Bank, xli., 286. 2. 'North-West Irrigation Act — 'Nuisance — Obstruction of highways — Duty to tuild and maintain hridges — Construction of statute — ei V. c. 35, ss. 11, 16, 37.]— By "The North- West Irrigation Act, 1898" (61 Vict. ch. 35), it is provided, (sec. 116) that irriga- tion companies should submit their, scheme of works to the Commissioner of Public Works of the North-West Territories and obtain from him permission to construct and operate the works across road allowances and surveyed public highways which might be affected by them : that (sec. 16) his ap- proval and permission for construction across the road allowances and highways should be obtained prior to the authorization of the works by the Minister of the Interior of the Dominion, and, (sec. 37), that during the construction and operation of the works. they should "keep open for safe and con- veniefit travel all public highways thereto- fore publicly travelled as such, when they are crossed by such works" and construct and maintain bridges over the works. The com- missioner was the' local officer in control of all matters affecting changes in or obstruc- tions to road allowances and pu'blie highways vested in the territorial government "includ- ing the crossing of such allowances or pub- lic highways by irrigation ditches, canals or other works." The commissioner granted permission to the appellants to construct and maintain their works across the road allowances and public highways shewn in their application "subject to the provisions of section 37 of the said North- West Irriga- tion Act," without imposing other conditions. — Ileld, reversing the judgment appealed from (3 Alta. L. R. 70), the Chief Justice and Idington, J., dissenting, that the absolute statutory duty in respect of the construction and maintenance of bridges imposed by sec- tion 37 of "The North-West Irrigation Act, 1898," relates solely to highways which were publicly travelled as such prior to the construction of the irrigation works, and that, as no further duty was imposed by the commissioner as a condition of the permis- sion for the construction and maintenance of their works, the company was not obliged to erect bridges across their works at the points where they were intersected by road allowances or public highways which became publicly travelled as such after the construc- tion of the works. — Per Davies and Duff, JJ. — In construing modern statutes confer- ring compulsory powers, including powers to interrupt the exercise of public rights, questions as to what conditions, obligations or liabilities are ajttached to, or arise out of the exercise of such powers, are primarily questions of the meaning of the language used or of ,the proper inferences respect- ing the legislative intention touching such conditions, obligations and liabilities to be drawn from a consideration of the subject- matter, the nature of the provisions as a whole, and the character of the objects of th« legislation as disclosed thereby. — Note. — Leave to appeal to the Privy Council was granted, 20th July, 1911. Alberta Railway V. The King, xliv., 505. 3. Municipal corporation — Assessment and taxation — Exemptions — Grown lands — Allot- ment for Irrigation purposes — Ungranted concession — Construction of statute — Words and phrases — "Land" — "Owner" — "Occu- pant" — Constitutional law — "B. N. A. Act, 1867," s. 125 — Alberta "Rural Municipality Act" — "Irrigation Act." Southern Alberta V. Rural Mun. McLean, liii., 151. See Assessment and Taxation. 4. Canals and ditches — Nuisance — Ob- struction of highways — Duty to build and maintain bridges — Construction of statute, xliv.. 505. See Statute. JUDGE. 1. Judgments on appeals — IS^l C. P. Q. — Quorum of judges — Judgment procured in absence of disqualified judge — Jurisdiction, XXXV., 330. See QuoEUM. 2. Breach of trust — Accounts — Evi- dence — Nova Scotia "Trusts Act" — 2 Edw. VII. c. 13 — Liability of trustee — N. S. Order XXXII., r. 3 — Judicial discretion — Statute of Limitations, xxxvii., 163. See Trusts. 3. Judicial sale of railways — Interested bidder — DisgucUification as purchaser — Counsel and solicitors — Art. IJfSJf C. C. — Construction of statute — Review by appel- late court — Discretionary order — 4 dc S Edw. VII. c. 158 (D.) — Public policy, xxxvii., 303. See Railways. 577 JUDGMENT. 578 4. Tfew trial — Judgment in court 'below on motion — Equal division — Appeal — Jurisdiction — Charge to jury — Misdirection — Bias, xxxvii., 532. See Appeal; New Tbial. 5. Cause of action — Limitation of actions — Contract — Foreign judgment — Yukon Ordr inance, c. Si of 1890— Statute of James — Statute of Anne — Lem fori — Lex loci con- tractus — Alsence of dehtor, xxxvii., 546. See Limitation of Actions. 6. Criminal law — Practice — Charge to jury — Crown case reserved — Reserved questions — Dissent from affirmance of conviction — Avveal — Jurisdiction — Criminal Code, 1892, ss. W, nS, 7U, 150— B. S. 0. (1906) c. U6, ss. 1013, 1015, 1016, 102Jt— Admis- sion of evidence — Res gestce, xxxviii., 284. See Ceiminal Law. 7. Title to land — Plan of survey — Evi- dence — Onus of proof— Findings of jury — Error — New trial, xxxviii., 336. See New Teial. 8. Appeal — Jurisdiction — "Supreme Court Act," ss. 36, 37, -}6 — Judge in chamr hers — Originating petition — Arts. 11, 72, ST 5, 816 C. P. Q. — Liquor Laws — "Quebec Ucense Law," R. S. 0., 1909, arts. 9U et teq. — Property in license — Agreement — Own- ership in persons other than holder — In- validity of contract — PuWic policy. Turgeon T. St. Charles, xlviii., 473. See LiQTJOE Laws. 9. Liquor laws — "Liquor License Ordin- ance," ss. 37, 57 — Cancellation of license — Jurisdiction of judge — 7 Edw. VIL, c. 9, s. U (Alta.), xliv., 321. See LiQUOE Laws. disposed of by such judgment. County of Elgin v. Robert, xxxvi., 27. 2. New trial — Decree of appeJlate court — Reasons for judgment.] — ^B., a passenger on a railway train, was thrice assaulted by a fellow-passenger during the passage. The conductor was informed of the first assault immediately after it occurred and also of the second but took no steps to protect B. In an action against the railway company B. recovered damages assessed generally for the injuries complained of. The verdict was maintained by the Court of Appeal but the Supreme Court of Canada ordered a new trial unless B. would consent to his damages being reduced (34 Can. S. O. R. 74). In the reasons given for thg last-mentioned judgment, written by Mr. Justice Sedgewick for the court, it was held that damages could be recovered for the third assault only but the judgment as entered by the registrar stated that the court ordered the reversal of the judgment appealed from and a new trial unless the plaintiff accepted the reduced amount of damages. Such amount having been refused a new trial was had on which B. again obtained a verdict, the damages being apportioned between the second and third assaults. On appeal to the Supreme Court of Canada from the judgment of the Court of Appeal maintaining this verdict : Held, Taschereau, C.J., and Davies, J., dis- senting, that, as the decree was in accord- ance with the judgment pronounced by the court when its decision was given, and as it left the whole case open on the second trial, the jury were free to give damages for the second assault, and their verdict should not be disturbed. — Held, per Taschereau, O. J., that the decree of the court should have been framed with reference to the opinion giving the reasons for the judgment and, if necessary, could be amended so as to be read as the court intended. Canadian Paci- fic Railway Co. v. Blain, xxxvi., 159. JUDGMENT. 1. Appealable Judgments and Oedees, 1- 2. 2. Estoppel, 3. 3. Final Jttdgmbnt and Oedees, 4-12. 4. Impeachment of Judgments, 13-20. 5. Othee Oases, 21-55. 1. Appealable Judgments and Oedees. 1. Appeal per saltum — Time limit — Pro- nouncing or entry of judgment.] — To deter- mine whether the sixty days, within which an appeal to the Supreme Court must be taken, runs from the pronouncing or entry of the judgment from which the appeal is taken no distinction should be made between common law and equity cases. — The time runs from the pronouncing of judgment in all cases except those in which there is an appeal from the registrar's settlement of the minutes or such settlement is delayed be- cause a substantial question affecting the rights of the parties has not been clearly 2. Estoppel. 3. Contract T>y municipal corporation — Powers — By-law or resolution — Right of action — Confession of judgment — Evi- dence — Admissions — Pleading — Estoppel ly record — Art. 1245 C. O.] — ^A confession of judgment for a portion of the amount claimed is a judicial admission of the plain- tiff's right of action and constitutes complete proof against the party making it. The V. Sudan Cotton Co. v. The Canada Shipping Co. (13 Can. S. C. R. 401) followed: The Oreat North-West Central Railway Go. v. Charlelois et al. ([1899] A. C. 114; 26 Can. 'S. C. R. 221) distinguished. Citizens Light and Power Go. v. Town of St. Louis, xxxiv., 495. And see Evidence. 3. Final Judgments and Oedees. 4. Appeal — Jurisdiction — Final judg- ment — Mandamus.] — The respondent ap- plied for a peremptory writ of mandamus to s.c.D. — 19 579 JUDGMENT. 580 compel appellants to purchase lands for the site of a parish church, and obtained an or- der, as follows:— "Vu la requgte ci-dessus, il est ordonne d'emaner un href de mandamus tel que demands." — An ordinary writ of summons issued, indorsed as a writ of man- damus, but the copy served did not contain any indorsement of the nature of the claim. An execption to the form was dismissed, and the Court of Queen's Bench quashed an ap- peal de piano. — "Parceque (1) Les appelants ont inscrit en appeal le I'ordonnance du juge permettant remission du bref de mandamus en cette cause, sans au prfialable obtenir la permission; (2) Parceque la dite ordonnanee n'est pas un jugement final, mais une inter- locutiore." — The registrar, considering that the order was not simply for the issue of a summons under art. 993 C. P. Q., but a peremptory order for the issue of a writ of mandamus, under art. 996 C. P. Q., held that the judgment was final in its nature and, therefore, appealable. — This decision was re- versed, on appeal, and the application for approval of the security for costs was dis- missed. Syndics de St. Valier v. CatelUer, Gout. Cas. 202. 5. Appeal — Jurisdiction — Interlocutory proceeding — Final judgment^ — There is io appeal to the Supreme Court of Canada from a judgment on a petition for leave to inter- vene in a cause, the proceeding being merely interlocutory in its nature. Samel v. Samel (26 Can. S. C. R. 17) followed. Connolly v. Armstrong, xxxv., 12. 6. Appeal — Jurisdiction — Discretionary order — Stay of foreclosure proceedings — Final judgment — Controversy involved — R. S C. c, 129, s. 76— B. S. C. o. 1S5, s. 28.] — -Leave to appeal to the Supreme Court of Canada under the seventy-sixth section of the "Winding-up Act" can be granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars. A judgment setting aside an order, made under the "Winding-up Act," for the postpone- ment of foreclosure proceedings and direct- ing that such proceedings should be con- tinued is not a final judgment within the meaning of the Supreme Court Act, and does not involve any controversy as to _ a pecuniary amount. Re Cushing Sulphite Fibre Co., xxxvii., 173. 7. Appeal — Jurisdiction — Declinatory exception — Interlocutory judgment — Re- view of judgment on exception — Practice.l — The action was dismissed in the Superior Court upon declinatory exception. The Court of King's Bench reversed this decision and remitted the cause for trial on the merits. On motion to quash a further appeal to the Supreme Court of Canada : Seld, that such motion should be granted on the ground that the objection as to the juris- diction of the Superior Court might be raised on a subsequent appeal from a judg- ment on the merits. Per Girouard, J.— The judgment of the Court of King's Bench was not a final judgment, and, consequently, no appeal could lie to the Supreme Court of Canada. Wilson v. Shamnigan Cariide Co., xxxvii., 535. 8. Appeal — Demurrer — Final judgment — Jurisdiction.] — The declaration In an ac- tion by a municipality claiming forfeiture of a franchise for non-fulfilment of the obliga- tions imposed in respect thereof alleged in five counts as many different grounds for such forfeiture. The defendant demurred generally to the declaration and specifically to each count. The demurrer was sustained as to three counts and dismissed as to the other two. On appeal from the decision of the registrar refusing an order to aflBrm the jurisdiction of the Supreme Court to enter- tain an appeal fom the judgment maintain- ing the demurrer : Seld, that each count con- tained a distinct ground on whicb forfeiture could be granted and a judgment depriving the municipality of its right to rely on any such ground was a final judgment in respect thereof which could be appealed to the Su- preme Court of Canada. Ville de St. Jean V. Molleur, xl., 139. 9. Appeal from order for reference — Jurisdiction — Final judgment.] — In 1903, the U. II. Co. executed a contract for sale to D. of all its lumber lands and interests therein, the price to be payable in three in- stalments at fixed dates. By a contempor- aneous agreement, the company undertook to get out logs for D. who was to make ad- vances "for the purpose. The agreement for sale was carried out and two instalments of the purchase money paid. At the time these contracts were executed the Union Bank of Halifax had advanced money to the com- pany and, shortly after contract for sale was assigned to the bank as security for such and future advances. The company having assigned in insolvency, the bank brought action against D. for tie last instal- ment of the purchase money to which he pleaded that he had paid in advances to the company and the bank more than the sum claimed. The trial judge held that the bank had no notice of the second agreement under which D. claimed to have advanced the money and gave judgment for the bank with a re- ference to ascertain the amount due. The full court set aside this judgment and order- ed a reference to ascertain the amount due the bank and, if anything was found to be due, to ascertain ttie amount due to' D. from the company. The bank sought to appeal from the latter decision. — Seld, that the judgment of the full court was not a final judgment from which an appeal would lie under the Supreme Court Act to the Supreme Court of Canada. Union Bank of Salifax v. Dickie, xli., 13. 10. Appeal — Jurisdiction — Final judg- ment.'] — ^In 1903 the United Lumber Co. executed a contract for sale to D. of all its lumber lands and interests therein, the price to be payable in three instalments at fixed dates. By a contemporaneous agreement the company undertook to get out logs for D. who was to make advances for the purpose. The agreement for sale was carried out and two instalments of th^ purchase money paid. At the time these contracts were executed the Union Bank had advanced money to the company and shortly after the contract for sale was assigned to the bank as security for such and for future advances. The company having assigned in insolvency the bank brought action against D. for the last instal- ment of the purchase money to which he pleaded that he had paid in advance to the 581 JUDGMENT. 583 company and the bank more than the sum claimed. The trial judge held that the bank had no notice of the second agreement under which D. claimed to have advanced the money and gave judgment for the bank with a reference to ascertain the amount due. The full court set aside this judgment and ordered a reference to ascertain the amount due the bank and, if anything was found to be due, to ascertain the amount due to D. from the company. The bank sought to ap- peal from the latter decision. — Held, that the judgment of the full court was not a final judgment from which an appeal would lie under the Supreme Court Act to the Supreme Court of Canada. Union Bank of Halifax v. Dickie, xli., 13. 11. Appeal — Jurisdiction — Stated case — Final judgment — Origin in Superior Court — Supreme Court Act, ss. 35 and 37.] — An information was laid before the police magistrate of St. John, N.B., charging the License Commissioners with a violation of the Liquor License Act by the issue of more licenses in Prince Ward than the Act au- thorized. The informant and the Commis- sioners agreed to a special case being stated for the opinion of the Supreme Court of New Brunswick on the construction of the Act and that court, after hearing counsel for both parties, ordered that "the Board of License Commissioners for the City of Saint John be, and they are hereby, advised that the said Board of License Commissioners can issue eleven tavern licenses for Prince Ward in the said City of Saint John and no more" (38 N. B. Rep. 508) . On appeal by the Commissioners to the Supreme Court of Can- ada: — Held, that the proceedings did not originate in a superior court, and are not within the exceptions mentioned in sec. 37 of the Supreme Court Act ; that they were extra cur sum curicc; and that the order of the court below was not a final judgment within the meaning of sec. 36; the appeal* therefore, did not lie and should be quashed. Blaine v. Jamieson, xli.; 25. 12. Appeal -^ Amount in controversy — Reference to assess damages — Final judg- ment.]' — In 1905 L. and others purchased from W. his creameries on the faith of a statement purporting to be made up from the books and shewing an output for the years 1904-5 equal to or greater than that of 1903. Having discovered that this state- ment was untrue they brought action for rescission of the contract to purchase and damages for the loss operating during 1906. The judgment at the trial dismissing the action was affirmed by the Divisional Court. The Court of Appeal reversed the latter judgment, held that rescission could not be ordered but the only remedy was damages and ordered a reference to assess the amount. On appeal to the Supreme Court of Canada : — Held, Girouard, J., dissenting, that as it can not be ascertained from the record what the amount in controversy on the appeal was, or whether or not it is within the appealable limit, the appeal does not lie. — Held, per Idington, J. — The judgment ap- . pealed against is not a final judgment. — ■Pb*- Girou«d, J., dissenting. — It is estab- ilishedby the-evidence fttthe trial, published to- the record, and admitted by the respec- tive counsel for the parties, that the amount in dispute exceeds $1,000. The court, there- fore, has. jurisdiction to hear the appeal. Wenger v. Lament, xli., 603. 4. Impeachment of Judgments. 13. Varying order for judgment — Settling terms more de finitely. ] — A stay of proceed- ings was ordered pending an appeal to the Privy Council, and, after the dismissal of that appeal the case was again inscribed, heard upon the merits, and allowed with costs, the majority of the ' court being of opinion that a sum of $5,000 paid to the respondent on 10th June, 1895, should be included in the judgment entered against him, with costs in all the courts. — ^Subse- quently the parties again applied to the courts for a more definite order, and by con- sent, judgment was ordered to be entered for $8,739.24, with interest as given by the judgment of the Superior Court and costs. — (Cf. The Queen v. Demurs ([1900] A. C. 103.) Bank of Montreal v. Demers, Cout. Cas. 196. 14. Varying minutes of judgment — Costs of former trials — Issues on appeal — Prac- tice.] — Motion to vary minutes, by adding a special direction as to costs of two former trials, refused on the ground that there had been no issue in question on the appeal touching the two previous trials. Dunsmuir V. Lowen'burg, Harris & Co., Cout. Cas. 270. 15. Amending minutes of judgment — Cor- recting error — Suit against partnership — Special leave for motion to full court — Prao- tice.] — ^Motion to vary minutes of judgment allowing the appeal was made (on special leave) by providing that appellant should recover the amount sued for with costs "against the said respondents," instead of "against H. Dallas Helmcken, the surviving defendant."— The action was against a part- nership, and on the appeal by the plaintiff, they were represented by the surviving part- ner only. In allowing the appeal (37 Can. S. C. R. 315, at pages 319-320) the court inadvertently directed that judgment should be entered for the plaintiff against the sur- viving defendant only. — The Court ordered that the amendment should be allowed as applied for, without costs. Jackson v. Drake, Jackson '£ Helmcken, Cout. Cas. 384. 16. Varying minutes of judgment.l — A motion to vary the minutes of judgment (37 Can. S. C. R. 464) as settled, to conform to the intention of the court, was allowed without costs. Leahy v. Town of 'North y, Cout. Cas. 404. 17. Blection law — Amending minutes of judgment — Order as to further proceedings in election court — Commencement of trial — Cross-petitions.] — On motions to vary min- utes of judgment as settled in The Halifam Election Cases (37 Can. S. C. R. 601),, in so far as they directed that the election trials should be proceeded with in regard if> the cross-petitions, and to vary them so that the parties should be sent back to, the. Con- , tro verted Elections Court in the same posi- „tion as they were before the appeals, and -68& JUDGMENT. 584 that the said court should be directed, sim- ply, to take such further proceedings as to law and justice appertain, it was contended that such alterations were necessary because trial proceedings on the cross-petitions had never been actually commenced in the court below in so far as the issues thereon were con- cerned. — ^Tbe court dismissed the motions with costs. Roche v. Borden; Carney v. 'O'Mul'in; Halifasi Election Gases, Cout. Cas. 421. 18. Pleading — Acquiescence — Practice on appeal — Varying minutes — Costs.] — Where a respondent, on an appeal to the court be- low, has failed to set up the exception re- sulting from acquiescence in the trial court judgment, as provided by article 1220 of the Code of Civil Procedure, he cannot, after- wards, take advantage of the same objection by motion to quash a further appeal to the Supreme Court of Canada. — On an applica- tion to vary the minutes of judgment, as settled by the registrar, for reasons which had not been mentioned at the hearing of the appeal, the motion was granted, but with- out costs, CTtamlly Mfg. Go. v. Willett, xxxiv., 502. And see Rivers and Steeams. 19. Settling minutes — Practice — Amend- ing judgment after entry.] — The minutes of judgment as settled by the registrar directed that the appellants' costs should be paid out of certain moneys in court, and in this form the judgment was duly entered and certified to the clerk of the court below. Subsequently it was made to appear that there were no moneys in court available to pay these costs, and upon the application of the appellants the court amended the judgment, directing that the costs of the appellants should be paid by the respondents forthwith after taxation. Letourneau v. Carbonneau, xxxv 701. 20. Practice — Recalling — Defect — Cor- rection of omission — Amendment of plead- ings — Jurisdiction — Costs — Settlement of minutes.] — Where by an accidental slip or oversight the formal judgment on an ap- peal failed to express the clear intention of the court that certain amendments in the pleadings should be allowed for the purpose of effective relief to the successful party the Supreme Court of Canada, on applica- tion subsequent to the transmission of the formal judgment to the court below, ordered that its judgment should be varied by in- serting therein a direction that the judgment appealed from and the plaintiffs declara- tion should be varied so as to correct the inadequate description of certain lands there- "i mentioned. Rattray v. Young (Cout. Dig. 1123), and Penrose v. Knight (Cout. Dig 1122), referred to. Idington and Duff, JJ., dissented from this order. — Per Duff J The judgment that the court in fact pro- nounced, and intended to pronounce, was simply that the appeal should be dismissed • sucb judgment does not involve any conse- quences whatever in respect of the amend- ment of the judgment or pleadings in the court of original jurisdiction. The power of the court to amend a judgment after it has become a re(;ord of the court is special- ly Hinited to making the record conform to the judgment pronounced or intended to be pronounced ; it does not authorize the re- calling of the judgment in order to deal with a collateral matter not actually or con- sti-uctively involved in the court's decision. The proper course was to apply to the court of original jurisdiction for an amendment of the record of that court. — The applica- tion was allowed only upon payment of costs thereof by the party moving, inasmuch as it had been his duty to have seen that the provision was inserted at the time of the settlement of the minutes of judgment. Pre- vost V. Bedard, li., 629. 5. Othee Cases. 21. Marine insurance — Abandonment — ^Be- pairs — Boston clause — Findings of jury — New trial — Practice — Evidence taken hy commission — Judicial discretion. Ins. Go. of North America v. McLeod, Cout. Caa. 214. 22. Appeal — Jurisdiction — Action en homage — Order for expertise — Final judgment. Johnson's Co. v. Wihon, Cout. Cas. 356. 23. Action for account — Partition of es- tate — Requ4te civile — Amend/ment of plead- ings — Discretion — Sulpreme Court Act, s. 6S — Order nunc pro tunc — Final or inter- locutory judgment — Form of petition in re- vocation — Res judicata, xxxiv., 13. See REQtrftTE Civile. 24. Appeal — Discretion of court below — Amendment of formal judgment — Mining regulations, xxxiv., 279. >Siee Appeal. 25. Commissioner of mines — Appeal from decision — Quashing appeal — Final judg- ment — Estoppel — Mandamus — Appro- priate remedy, xxxiv., 328. See Appeal. 26. Appeal — Jurisdiction — Petitory ac- tion — Bornage — Surveyor's report — Costs — Order as to location of boundary line — Execution of judgment, xxxiv., 617. ^ See BOTJNDAKT. 27. _ Opposition afin de charge — Order for security — Interlocutory judgment — Res judicata — Subsequent final order — Revision of merits on appeal — Practice, xxxv., 1. See Appeal ; Costs. 28. Credit on account of demande — Re- traxit — Amount in controversy on appeal, xxxv,, 8. See Retraxit. 29. Solicitor and client — Costs — Gonfet- ston of judgment — Agreement with counsel — Overcharge, xxxv., 168. See Solicitor. 30. Right of appeal — Interest of appel- lant — Parties to action — Art. 77 O P Q.— Arts. 252, 95Sa, 968 et seq. Of C.— Will- Sales of substituted lands — Prohibition agamst aUenation^Res judicata, xxxv., 193. See AppeJal. 585 JUDGMENT. 586 31. Judgments on appeals — Art. ISil 0. P. Q. — Quorum of judges — Judgment pro- nounced in absence of disqualified judge — Jurisdiotion, xxxv., 330. See' Quorum. 32. Defective proceedings — Entry of for- mal order — Winding-up Act, xxxvi., 494. See AppBai,. 33. Decision upon issues — Den^urrer — Appeal from Exchequer Court, ixxvi., 593. See Appeai.. 34. New trial — Judgment in court helow on motion — Equal division — Appeal — Jurisdiction — Charge to jury — Misdirection — Bias, xxxvii., 582. See Appeal; New TbIai,. 35. Foreign judgment — Action on — Statute of Limitations, xxxvii., 546. See Action, 36. Practice — Revising minutes of judg- ment — • Mistake — Costs of abandoned de- fences — Reference to trial judge, xxxviii., 103. See Peactice. 37. Vacating judgment — Appeal — Juris- diction — Matter in controversy — Tierce op- position^Arts. 1185-1188 C. P. Q.—R. 8. 0. (.1886) c. 135, s. Z9, xxxviii., 236. See Opposition. * 38. THew trial — Final judgment — Alter- native relief, xl., 270. See Appeal. 39. HusioMd and wife — Institution of action by divorced wife— Judicial authorizor Hon— Arts. 176, 118 0. C.—Art. U C. O. P. — Divorce — Decree by foreign tribunal — Jurisdiction — Efect in Quebec — Comity of nations, Cam. Cas. 392. See DrvoECB. 40. Chattel mortgage — Renewal — Time for filing — Identification of goods — Suffi- ciency of description, — Proof of judgment and execution. Cam. Cas. 436. See Chattel Mortgage. 41. Appeal — Jurisdiction — Supreme Court Act, 1815, 98 Vict. 0. 11 — Denmrrer — Final judgment — Costs, Cout. Cas. 11. See Appeal. 42. Tamation of costs — Stay of execution -^Setting-off costs in court below — Amend- ing minutes of judgment — Practice, Cout. Cas. 19. See Costs. 43. Judgment delivered out of court — Practice, Cout. Oas. 66. See Peactioe. 44. Varying minutes of judgment — Re- payment of costs — Payment under threat of execution — Jurisdiction, Cout. Cas. 306. See Practice. 45. Appeal — Practice — Amendment of pleading — Discretionary order — Final judg- ment, Cout. Cas. 386. See Appeal. 46. Appeal — Jurisdiction — Commit- ment of judgment debtor — Final judgment — Manitoba King's Bench rules 148, 155 — "Matter or judicial proceeding" — ■ Suprems Court Act, s. 2(e). Svensson v. Bateman, xlii., 146. See Appeal. 47. Default judgment — Order setting aside — Appeal. Green v. Oeorge, xlii., 219. See Appeal. 48. Breach of contract — Place of perform- ance — Foreign judgment — Action. Canada Wood V. Merits:, xlii., 237. See Conteaot. 49. Appeal — ■ Jurisdiction — Matter in controversy — Instalment of m/unicipal tax^ — Collateral effect of judgment. Town of Outre- mont V. Joyce, xUii., 611. See Appeal. 50. Appeal — Jurisdiction — Matter in controversy — Stare decisis — Municipal by-law — Injunction — Contract — • Collateral effect of judgment— Construction of statute —"Supreme Court Act," R. S. C. (1906) c. 139, ss. 36, 39 (c), 46. Shawinigan By- Elec. Go. V. Shawinigan Water & Power Co., xliii., 650. See Appeal. 51. Appeal — - Nature of action — Equit- able relief — "Supreme Court Act," s. S8c — • Appeal from referee — Final judgment — As- sessment of damages, xliv., 284. See Appeal. 52. Ownership of horses — Bill of sale — Foreign judgment — Interpleader — Secondary evidence — Parol testimony. Evans v. Evans, 1., 262. See Bill of Sale. 53. Contract — Sale of mining land — ■ Substituted purchaser — Reservation of claim against original purchaser — Forfeiture of second contract — Sale to other parties- Effect on reserved claim. Vivian v. Clergue, 11., 527. See Sale. 54. Vendor and purchaser — Contract — Sale of mining land — Substituted purchaser — Reservation of claim against original pur- chaser — Forfeiture of second contract — Sale of land to other parties — Effect on reserved claim, 11., 527. See Sale of Land. 55. "Expropriation Act," R. S. C. 1906, c. 143, ss. 8, 23, 31 — Abandonment of proceed- ings — Compensation — Allowance of interest — Construction of statute — Practice — Taxa- tion of costs — Solicitor and client — Reim- bursement of expenses — Interpretation of formal judgment — Reference to opinion of judge. Quebec Jacques Cartier Elec. v. The King, li., 594. See ExPKOPKiATioif. 58f JUEISDICTION. 588 JUDICIAL FUNCTION. Mining regulations — Hydraulic lease- Breach of conditions — Construction of deed Forfeiture — Right of lessees — Procedure on inquiry — Judicial duties of arbiter, xl., 281, 294. See Mines and Mining. JUDICIAIi PROCEEDING. Appeal — Alherta Liquor License Ordin- ance — Cancellation of license — "Supreme Court Act." Finseth v. Byley Hotel Co., xliii., 646. See Appeal. JURISDICTION. 1. BoAKD OF Railway Commissionebs, 1-5. 2. British Colitmbia Abbitration Act, 6. 2(a). Recorders' Court, 7. 3. Exchequer Court, 8-9. 4. liiQUOR License Act, Alberta, 10. 5. Parliament or Canada, 11. 6. Other Cases, 12-85. 1. Board of Railway Commissioners. 1. Board of Railway Commissioners — Appeal to Supreme Court.} — -The Board of Railway Cooimissiouers granted an applica- tion of the James Bay Railway Co. for leave to carry their line under the. track of the G. T. Ry. Co., but, at the request of the latter, imposed the condition that the ma- sonry work of such under-crossing should be suflScient to allow of the construction of an additional track on the line of the G. T. Ry. Co. No evidence was given that the latter company intended to lay an additional track in the near future or at any time. The James Bay Co., t)y leave of a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms, con- tending that the same was beyond the juris- diction of the Board. — Held, that the Board had jurisdiction to impose said terms. — Held, per Sedgewick, Dayies and Maclennah, JJ., that the question before the court was rather one of law than of jurisdiction and should have come up on appeal by leave of the Board or been carried before the Gov- ernor General in Council. James Bay Ry. Co. V. Grand Trunk Ry. Co., xxxvii., 372. . 2. Board of Railway Commissioners— Jur- isdiction — Traffic accommodation — Restor- ing connections— -3 Edw. VII. c. 58, ss. 176. %H, 253.]— On an application to the Board of Railway Commissioners for Canada, un- der the provisions of the "Railway Act, 1903," for a direction that a railway com- pany should replace a siding, where traffic facilities had been formerly provided for the respondents with connections upon their lands, and for other appropriate relief for such purposes : — Held, that, under the cir- cumstances, the Board had jurisdiction to make an "order directing the railway com- pany to restore the spur-track facilities for- merly enjoyed by the applicants for the car- riage, despatch and receipt of freight in car- loads over, to and from the line of railways. Canadian Northern Ry. Co. v. Robinson, xxxvii., 541. 3. Board of Railway Commissionei's — Con- struction of subway — Apportionment of cost — ■ Person interested or affected — Street railway- — Agreem,ent with municipaUty.'[ — The power of the Board of Railway Com- missioners, under section 186 of the Rail- way Act, 1903, to order a highway to be carried over or under a railway is not re- stricted to the case of opening up a new highway, but may be exercised in respect to one already in existence. — The application for such order may be made by the munici- pality as well as by the railway company. Ottawa Electric Ry. Co. v. City of Ottawa and Canada Atlantic Ry. Co., xxxvii., 354. And see Railways. 4. Board of Railway Commissioners — Lo- cation of railway — Consent of municipality — Crossings-Leave of Board — Discretion.] —On 12th Aug., 1905, the Township of Sandwich West passed a by-law, authoriz- ing the W., E., etc., Ry. Co. to construct its line along a named highway in the muni- cipality, but the powers and privileges con- ferred were not to take effect unless a for- mal acceptance thereof should be filed within thirty days from the passing of the by-law. Such acceptance was filed on 12th Sept., 1905. This was too late and on 20th July, 1907, the council of Sandwich West and that of Sandwich East respectively passed by-laws containing the necessary authority. — ^In April, 1906, the location of the line of the E. T. Ry. Co. was approved by the Board. In June, 1906, the Board made an order allowing the W. E., etc., Ry. Co. to cross the line of the C. P. Ry. In March,' 1907, another order respecting said crossing was made and also an order approving the location of the W. E. Ry. Co., the municipal consent being obtained three months later. — The E. T. Ry. Co. applied to the Board to have the orders of June, 1906, and March, 1907, rescinded and for an order requiring the W. E. Ry. Co. to remove its track, from the highway at the point where the appli- cation proposed to cross it, to discontinue its construction at such point or, in the alternative, for an order allowing it to cross the line of the W. E. Ry. Co. on said high- way. The applicants claimed to be the senior road and that the W. E. Ry. Co. had never obtained the requisite authority for locating its line. On a case stated to the Supreme Court by the Board. — Held, that the Board had power to refuse to set aside the said orders; that the by-laws passed in July, 1907, were suflScient to legalize the construction of the W. E. Ry. Co.'s line on said highway ; and that the Board can now lawfully authorize the latter company to maintain and operate its railway thei-eon. — Held, further, that leave of the Board is necessary to enable the E. T. Ry. Co. to lay its tracks across the railway of the W. E. Ry. Co. on said highway. — Held, also, that the Board, in exercise of its discretion, has power by order to authorize the mainten- 589 JUEISDICTION. 590 ance and operation of the W. E. Ry. Co. along said highway, and to give leave to the E. T. Ry. Co. to cross it and the line of the C. P. Ry. near the present crossing and to apportion the cost of maintaining such crossing equally between the two companies instead of imposing two-thirds thereof upon the E. T. Ry. Co. as was done by a former order not acted upon ; and to order that if the E. T. Co. finds it necessary in its own interest to iave the points of crossing dif- ferently placed it should bear the expense of removing the line of the W. E. Ry. Co. to the new point of crossing. Essex Ter- minal Rway. Co. v. Windsor & Essex & Lake Shore Rapid Rway Co., xl., 620. 5. Board of Railway Commissioners — Jurisdiction — Railway crossing — ■ Contri- bution to cost — Party interested — Munici- pality — Distance from work.'\ — A munici- pality may be a "party interested" in works for lie protection of a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and the Board of Railway Commissioners has jurisdiction to order it to pay a portion of the cost of such work. County of Carle- ton V. City of Ottawa, xli., 552. 2. Bbitish Columbia Akbitkation Act. 6. Arbitration and award — British Co- lumbia Arbitration Act — Setting aside award — Misconduct of arbitrator ■ — Parti- ality — Jurisdiction of majority — Decision in absence of third arbitrator — Judicial dis- cretion.] — A reference under the British Columbia Arbitration Act authorized two out of three arbitrators to make the award. After notice of the final meeting the third arbitrator failed to attend, on account .>f personal inconvenience and private affairs, but both parties appeared at the time ap- pointed and no objections were raised on account of the absence of the third arbitra- tor. The award was then made by the other two arbitrators present. — Held, ve- versing the judgment appealed from (10 B. C. Rep. 48), that under the circum- stances there was cast upon the two arbitra- tors present the jurisdiction to decide whe- ther or not, in the exercise of judicial discre- tion, the proceedings should be further de- layed or the award made by them alone in the absence of the third arbitrator, and it was not inconsistent with natural justice that they should decide upon making the award themselves. — Held, further, that al- though the third arbitrator had previously suggested some further audit of certain ac- qounts that had already been examined by the arbitrators, there was nothing in this circumstance to impugn the good faith of the other two arbitrators in deciding that further delay was unnecessary. Doberer v. Megaw, xxxiv., 125. And see Aebitration and Award. 2(a) Recorders' Court. 7. Operation of tramway — Poicers of municipal corporation — Legislative author- ity — Use of streets — By-law — Conditions im- posed — Penalty for breach of conditions — ■ Repeal of by-law — Contractual obligation — Offence against by-law — Jurisdiction of Re- corder's Court — Prohibition.] — ^The city en- acted a by-law granting the company per- mission to use its streets for the construc- tion and operation of a tramway and, in conformity with the provisions and condi- tions of the by-law, the city and the com- pany executed a deed of agreement respect- ing the same. A provision of the by-law was that "the cars shall follow each other at intervals of not more than five minutes, except from eight o'clock at night to mid- night, during which space of time they shall follow each other at intervals of not more than ten minutes. The council may, by resolution, alter the time fixed for the cir- culation of the cars in the different sections." For neglect or contravention of any condi- tion or obligation imposed by the by-law, a penalty of $40 was imposed to be paid by the company for each day on which such default occurred, recoverable before the Recorder's Court, "like other fines and pen- alties." An amendment to the by-law, by a subsequent by-law, provided that "the pre- sent disposition shall be applicable only in such portion of the city where such increased circulation is required by the demands of the public." — Held, that default to conform to the conditions and obligations so im- posed on the company was an offence against the provisions of the by-law, and that, un- der the statute, 29 & 30 Vict. ch. 57, see. 50 (Can.), the exclusive jurisdiction to hear and decide in the matter of such offence was in the Recorder's Court of the city of Que- bec. Judgment appealed from (Q. R. 17 K. B. 256) aflirmed. Quebec Ry., Light and Power Go. v. Recorder's Court and City of Quebec, xli., 145. .3. Exchequer Court. 8. Admiralty law — Foreign bottoms — Collision in foreign waters — Jurisdiction of Canadian Courts.] — A foreign vessel passing through waters dividing Canada from' the United States under a treaty allowing free passage to ships of both nations is not, even when on the Candian side, within Can- adian control so as to be subject to arrest on a warrant from the Admiralty Court. — A warrant to arrest a foreign ship cannot be issued until she is within the jurisdiction of the court. — Quwre. — Have the Canadian Courts of Admiralty the same jurisdiction as those in England to try an action in rem by one foreign ship against another for damages caused by a collision in foreign waters? — Judgment of the Exchequer Court, Toronto Admiralty District (10 Ex. C. R. 1) reversed, Idington, J., dissenting. The fihip "D. G. Whitney" v. St. Clair Naviga- tion Co., xxxviii., 303. 9. Admiralty law — Jurisdiction of the Exchequer Court of Canada — Claim under mortgage on ship — Action in rem — Pleading —Abatement of contract price — Defects in construction — Damages.] — In an action in rem by the builders of a siip to enforce a mortgage thereon, given to them on account 591 JUEISDICTIOX. 592 of the contract price for its construction, the owners, for whom the ship was built, may plead as a defence v^o 'o"*" t^* *'^® ^'P was not constructed according to specifica- tions and claim an abatement of the price in consequence of such default and that the loss in value of the ship, at the time of de- livery, attributable to such default, should be deducted from the claim under the mort- gage. (Leave to appeal to Privy Council was granted by the Supreme Court of Can- ada; see p. 430.) Bow MoLachlan and Co. V. The Camosun," xl., 418. 4. LIQ0OR License Act, Axbebta. 10. Liquor laws — "Liquor License Ordin- ance," ss. 37 and 57 — Cancellation of license — Jurisdiction of judge — ^7 Edw. VII. c. 9, s. 34 (Alta.).] — The provisions of section 5T of "The Liquor License Ordinance" (Con. Ord. 1898, c. 89), confer upon a judge of the Supreme Court of Alberta power to direct the cancellation of liquor licenses whiieh have been obtained in violation of sub-section 3, of section 37, of that ordin- ance as amended by section 14 of "The Liquor License Amendment Act, 1907," 7 Edw. VII. c. 9, of the Province of Alberta. Finseth v. Byley Hotel Co., xliv., 321. 5. Parliament or Canada. 11. Canadian waters — Three-mile-zone — Fishing iy foreign vessels — Legislative jur- isdiction — Seizure on high seas — Pursuit be- yond territorial limit — International law — Constitutional law — B. N. A. Act, 186T, s. 91, s.-s. IS — Sea-coast fisheries— R. 8. C. c. 94, ss. 2, S, 4-] — Under the provisions of the "British North America Act, 1867," s. 91, S..S. 12, the Parliament of Canada has ex- clusive jurisdiction to legislate with respect to fisheries within the three-mile-zone off the sea-coasts of Canada. — A foreign vessel found violating the fishery laws of Canada within three marine miles off the sea-coasts of the Dominion may be immediately pur- sued beyond the three-mile-zone and law- fully seized on the high seas. The judgment appealed from (11 B. C. Rep. 473) was affirmed. Girouard, J., dissenting. The Ship "North" v. The King, xxxvii., 385. 6. Othee Cases. 12. Bideau canal lands — Mis-user — For- feiture — Condition subsequent — Jurisdiction of Exchequer Court of Canada — Costs. Wright v. The Queen, Cout. Gas. 151. 13. Habeas corpus — Criminal appeals — Grand jurors — Selection of talesmen. Re Menard, Cout. Cas. 313. 14. Railway Act, 1903 — Powers of Board of Railway Commissioners. Can. Northei-n By. Co. V. Robinson & Son, Cout. Cas. 394. 15. Bailway Act, 1903 — Powers of Board of Bailway Commissioners — Construction of statute. Grand Trunk By. Co. v. Canadian Pacific By. Co. and City of London, Cout. Cas. 396. 16. Constitutional law — -Criminal courts — General Sessions of the Peace — Jurisdiction of magistrate — Summary trials — Criminal Code, s. 785, xxxiv., 621. See Criminal Law. 17. Bailway Act, 1903 — Street railways — Bemoval of tracks — Authority of Board of Bailway Commissioners for Canada — High.- ways in cities and towns — By-law — Quebec Municipal Code, arts. 464, 4S1, xxxvi., 369. See Railwats. 18. Railways — Farm crossing — Jurisdic- tion of the Board of Railway Commission- ers for Canada — Statutory contract — Rail- way Clauses Act, 1851 — Grand Trunk Rail- way Act, 1852 — "Railway Act, 1888" — "Bailway Act, 1903" — Appeal to Supreme Court of Canada — Jurisdiction ■ — Contro- versy involved, xxxvi., 671. See Board op Railway Commissioners FOR Canada. 19. Construction of statute — "Marsh Act," R. S. N. S. 1900, c. 66, ss. 22, 66-~Jurisdic- tion of Marsh Commissioners — Assessment of lands — Certiorari — Limitation for grant- ing writ — Practice — Expiration of time limit — Delays occasioned by judge — Legal maxim — Order nunc pro tunc, xxxvii., 79. See Certiorari. 20. Constitutional law — British North America Act, 1867 — Provincial legislative jurisdiction — "Alberta Act," 4 ee Board op Railway Commissioners. 35. Deviation of railway tracks — High- way — Dedication — User — "Public way or means of communication" — Access to har- bour — Navigable waters. O. T. R. v. To- ronto, xlii., 613. See Highway. 36. Appeal per saltum — Jurisdiction ooer Indian reserves. Armour v. Town of Onon- daga, xlii., 218. See Appeal. 37. Railways — Fencing^Vninclosed lands — Jurisdiction of Board of Railway Com- missioners — Construction of statute — The Railway Act, R. S. 0. 1906, c. S7, as. SO, 25 Jf. Re Canadian Northern, xlii., 443. See Railways. 38. Constitutional law — Legislative juris- diction— "Early closing by-law" — Municipal affairs — Property and civil rights — Local and private matters — Regulation of trade and commerce. Montreal v. Beauvais, xlii,, 211. See CoNSTiTtJTiONAL Law. 39. Service out of jurisdiction — Attach- ment — Manitoba King's Bench Rules 201, 202 — Non-resident foreigner — Detention of goods pending suit — Substitutional service — Consolidating appeals to Supreme Court of Canada — Questions of practice, xlii., 226. See Appeal. 40. Appeal — Jurisdiction — Dismissing ap- peal, xlii., 219. See Appeal. 41. Appeal per saltum — Jurisdiction, xliii, 218. See Appeal. 42. Appeal — Amount in controversy — Addition of interest to amount of verdict — Stay of execution, xlii., 238. See Appeal. 43. Arbitration and award — Statutory arbitrators — Awards "from time to tim.e" — Res judicata, xlii., 161. See Abeitration and Award. 44. Appeal — Matter in controversy — Municipal franchise — Demolition of water- works — Title to land — Future rights, xlii., 156. See Appeal. 45. Appeal — Commitment of judgment debtor — Final judgment — Manitoba King's Bench Rules 7^8, 755 — "Matter or judicial proceeding" — Supreme Court Act, s. 2 (e), xlii., 146. See Appeal. 46. Appeal — Rivers and streams — Right of floating logs — Servitude — Faculty or license — Possessory action — Injunction — Matter in controversy — Practice — Costs — Action, xlii., 133. See Appeal. 47. Practice and procedure — Appeal to Privy Council — Stay of procedings, xlii., 361. See Practice and Procedure. 48. Appeal — "Alberta Liquor License Act" — ■ Cancellation of license — Persona 595 jUEiSDica?io]sr. 596 designata — Curia nominatim — "Originat- ing summons" — Court of superior jurisdic- tion, xlli, 264. See Appeal. 49. iSfee Appeal; Boaed of RailWat COMMISSIONEBS ; STATUTE. 50. Appeal — Matter in controversy — -Stare decisis — Municipal iy-law — Injunction — Contract — Collateral effect of judgment — Construction of statute — "Supreme Court Act," R. S. C. 1906, 0. 139, ss. 36, 39 (e), Jt6, xliii., 650. See Appeal. 51. Appeal — Matter in controversy — In- stalment of municipal tax — Oollateral effect of judgment, xliii., 611. See Appeal. 52. Appeal — Prohibition — Quebec appeals —B. S. C. 1906, c. 139, ss. 39, 46 — Construc- tion of statute, xliii., 82. See Appeal. 53. Title to land — Mortgage — Foreclosure — Equitable jurisdiction of court — Opening up foreclosure proceedings — Construction of statute — "Real Property Act," R. 8. M., 1902, c. U8— 5 & 6 Mdw. VII. c. 75, a. S (Man.) — Equity of redemption — Certificate of title, xliv., 1. See Title to Land. 54. Board of Railway Commissioners — Private siding — Construction of statute — Railway Act," R. 8. C. (1906) c. St, ss. 222, 226, 3n — Branch of railway — Res inter alios — Estoppel, xliv., 92. See Railwats. 55. Appeal — Leave by judge — Jurisdiction of Railway Board— Doubt as to decision of Board, xliv., 298. See Appeal. 56. Construction of statute — Quebec "Sun- day Act" — Prohibition of theatrical perform- ances — Local, municipal and police regula- tions — Criminal law — Legislative jurisdic- tion' — Validation by federal legislation — "Lord's Day Act," xlvi., 502. See CoNSTiTniioNAL Law. 57. Cdnstruction of statute — "Quebec Pub- lic Health Act," R. 8. Q., 1909, art. 3913^ Inspection of food — Duty of health officers — Quality of food — Condemnation — Seizure — Notice — Effect of action by health officers — Controlling power of courts — Evidence — Injunction — Jurisdiction — Question in con- troversy, xlvii., 514. 58. Appeal — Reserve of further directions — -"Final judgment" — Construction of stat- ute — "Supreme Court Act," R. S. C, 1906, c. 139, s. 2(e); 3 £ 4 Geo. V., c. 41, s. 1, xlviii., 497. See Appeal. 59. Appeal — "Supreme Court Act," ss. 36, 37, 46 — Judge in chambers — Originating petitionr-Arts. 11, 12, 875, 876 C. P. Q.— Liquor laws — "Quebec License Law," R. B. Q., 1909, arts. 924 et seq. — Property iri license — Agreement — Ownership in persons other than holder — Invalidity of contract — Public policy, xlviii., 473. See AppBfAL. 60. Criminal law — Habeas corpus — Com- mon law offences — Construction of statute — "Supreme Court Act," R. S. C, 1906, o. 1S9, f. 62— Jurisdiction of Supreme Court judges, xlviii., 235. See Ceiminai Law. 61. Company law — Agreement by directors Onerous contract — 'Non-disclosure to share- holders — Breach of contract — Damages — Settlement of accounts — Appeal — Reference to master — Final judgment, xlviii., 318. See CoMPANT Law. 62. Criminal law — Habeas corpus — Com- mon law offences — Construction of statute — "Supreme Court Act," R. 8. O., 1906, c. 139, s. 62. In re Dean. In re Alberta R. B. Act, xlviii., 235. See Ceiminal Law. And see Legislation. 63. Fisheries — Seizure of foreign ship — Fishing within territorial waters — Evidence —Jurisdiction of Canadian court — Concur- rent findings of fact, xlix., 180. See Fisheeies ; Appeal. 64. Assessment and tames — Lease of Crown lands — Interest of occupier — Consti- tutional law — Exemption from taxation — Construction of statute — "B. N. A. Act, 1867," s. 125—(Sask.) 6 Edw. VII., o. 36, "Local Improvements Act" — (Sask.) 7 Edw. VII., c. 3, "Supplementary Revenue Act" — Recovery of tames — Non-resident — Action for debt — Jurisdiction of provincial courts, xlix,, 563. See Constitutional Law. 65. Statute — "Colonial Courts of Admir- alty Act, 1890,' (Imp.) 53 & 54 V. c. 27— "Public Authorities Protection Act, 1892," (Imp.) 56 d 57 V. c. 61 — Limitation of ac- tions — Effect of statutes — Practice and pro- cedure, xlix., 627. See Statute. 66. Appeal — Case originating in Superior Court^Supreme Court Act, s. 37(h) — Con- current — "Mechanics' lAen Act" (B.C.) — Action to enforce lien, 1., 382. See Appeai,. 67. Powers of company — SaZe of shares — Security by mortgage — Subsequent creditor — Status — Foreclosure. Hughes v. Nor. Elec. & Mfg. Co., 1., 626. See Peactice. And «ee Appeai. 68. Practice — Appeal — Expropriation — Application to appoint arbitrate — Persona designata — Amount in controversy — "i2o»!- way Act," R. 8. O. 1906, c. 37, s. 196, 1., 476. See Appeal. 69. Damages — Contract — Purchase of rail-' way bonds — Consideration — Extension of 5y7 JUKY. 598 line — Breach of contract — Personal UaiiUtii of president of company — Appeal, li., 283. See CONTBAOT, 70. Appeal — Judgment of Court of Review — Modification of trial judgment — Affirmance —"Supreme Court Act," R. S. C, 1906, c. 199, s. 40, li., 136. See Appeal. 71. Appeal — Injunction — Matter in con- troversy — Refusal of costs — Supreme Court Rule 4 — "Supreme Court Act," s. 46, lli., 223. See Appeai,. 72. Appeal — Probate Court — Surrogate Court— R. S. C. 1906, c, 139, ». 37(d), lii., 114. See Appeai,. 78. Appeal of provincial tribunal — Con- sent of parties — Estoppel — Assessment — Railway bridge over navigable river — R. 8. 0. (1914) c. 195— R. S. 0. (1914) c. 186, lii., 466. See Assessment. 74. Appeal — Jurisdiction of provincial tri- bunal — Consent of parties — Mstoppel — Assessment — Railway bridge over navigable river. Township of Cornwall v. Ottawa d N. T. R. R., m., 466. See Assessment and Taxes. 75. Final judgment — Supreme Court Act. s. S8 (c). Jones v. Tucker, liii., 431. See Appeal. "Supreme Court Act," R. S. C, 1906, o. 1S9, ss. 37c, 71— Practice, liii., 15. See Appeal. 81. Appeal — Court of Review — Arts. 68, 69 C. P. Q.— "Supreme Court Act,'' R. 8. v., 1906, c. 139, s. 40— Practice, liii., 353. See Appeal. 82. Appeal from Court of Review — Amount in controversy — Addition of cost of exhibits — Practice, liii., 380. See Appeal. 83. Appeal — Action in county court — Con- current jurisdiction with superior court — Construction of statute — R. B. C, 1906, c. 139, ss. 37b, 70, "Supreme Court Act"— R, 8. B. C, 1911, c. 51, "Court of Appeal Act"—R. 8. B. C, 1911, 0. 53, "County Courts Act" — Motion for new trial — Re- heq,ring on appeal — Practice, liv., 76. See Appeal. 84. Appeal — Assessment and taxation — Adjudication authorized by provincial au- thority — "Supreme Court Act,'' R. 8. C, 1906, 0. 139, s. 41 — Finality of provincial de- cision — "Court of last resort," liv., 1. See Appeal. 85. Appeal — Matter in controversy — "Su- preme Court Act," s. 4^ (l>) and (c) — Ac- tion to remove cloud on title — Discharge of mortgage — Deferment of payment of accru- ing instalments — Title to land — Future rights, liv., 140. See Appeal. 76. Appeal — Final judgment — Substantive right — "Supreme Court Act," s. 2e — S e of gas from the controllers or other fixtures in the room or in the blow-room adjoining it ; that there had been no special precaution by the de- fendants to detect any such escape of gas that might occasionally happen, and that the meter-room had always been and, at the time of the accident, was lighted by means of open gas jets. There was no exact proof of any particular fault, attributable to the defendants, which could have been the whole cause of the explosion, and its origin and course were not explained. In an action for damages by the widow and representatives of deceased, the jury found that the explo- sion had resulted from the fault and impru- dence of the defendants in lighting the meter-room by open gas jets, and contribu- tory negligence on the part of deceased was negatived. Held, affirming the judgment ap- pealed from (Q. R. 16 K. B. 246), Davies aiid Maolennan, JJ., dissenting, that, in the circumstances, the jury were justified in finding that there had been such negligence and imprudence on the part of the defend- ants, in such use of open gas jets, as would render them responsible for the injury com- plained of. Montreal Light, Heat and Power Co. v. Regan, xl., 580. 8. Negligence — Operation of railwayi — Highway crossings — Inconsistent findings — Questions to jury — Practice — Mistrial.] — Where the findings of the jury were con- flicting and inconsistent to such a degree as to satisfy the court that there had been a mistrial, a new trial was directed. — Judg- ment appealed from reversed, Idington, J., dissenting. Grand Trunk Ry. Co. y. Moore, Cout. Cas. 401. 601 JUEY. 602 9. New trial — Misdirection — Questions for jury — Verdict on issues — Damages.1 — An order for a new trial should not be granted merely on account of error in the form of the questions suifamitted to the jury where no prejudice has been suffered in consequence of the manner in which the issues were pre- sented by the charge of the judge at the trial and the jury has passed upon the questions of substance. — The judgment ap- pealed from (18 Man. R. 134) was affirmed, the Chief Justice dissenting, and Davies, J., hesitante, as to the quantum of the damages awarded. Winnipeg Electric Ry. Co. v. Wald, xli., 639. 10. 'Negligence — Operation of railwa/y — Unsafe roadbed — Speed of trains — Disohedi- enoe to orders — Answers iy jury — "Lord Campbeli's Act" — Injury sustained outside province — Right of action in Manitoba.] — At a curve in the permanent way there was a sink-hole, over which the roadbed had been recently constructed, where the weight of passing trains caused the tracks to be de- pressed, but trains running slowly had been safely operated across the unsafe spot for several months. Orders had been given that no trains were to be run over this place at greater speed than 5 miles per hour. The husband of plaintiff was engine-driver of a train which was run over the dangerous spot at a rate exceeding that indicated in the order and was derailed, causing injuries which resulted in his death. The accident happened in the Province of Ontario and the action to recover damages was instituted in Manitoba. In answer to the question. "In what did such negligence consist?" the jury answered, "a defective roadbed, and not having provided a watchman for same." — Held, affirming the judgment appealed from (24 Man. R. 807), Idington and Brodeur, JJ., dissenting, that the answer returned by the jury was insufficient and vague ; that there was no reasonable evidence to support a finding that, assuming the order regulat- ing speed of trains to be observed, the per- manent way at the place in question was so dangerous as to make it negligence on the part of the railway company, vis-&-vis de- ceased, to operate trains thereupon or that the cause of the accident was the state of the roadbed rather than the running of the train at excessive speed. — Per Idington, Duff and Brodeur, JJ. — ^A legal obligation eai delicto, arising in consequence of a fatal ac- cident which happened beyond the territorial limits of the Province of Manitoba, may be enforced in the Manitoba courts where, ac- cording to the law in force in Manitoba, a similar right of action would have arisen if the accident had occurred within the province. Philips v. Eyre (L. R. 6 Q. B. 1) referred to. Lewis v. Grand Trunk Pacific Railway Co., lii., 227. 11. Negligence — Electric shock — Action against two defendants — Findings of jury — Joint liability — Agreement between defend- ants — Right to indemnity.'] — In an action against two parties claiming from them jomtly and severally compensation for the death of plaintiff's son from electric shock caused by negligence, where there is no contributory negligence both defendants may be held liable if the negligence of each was a real cause of the accident. Cf. Algoma Steel Corporation v. Dul4 (53 Can. S. C. R. 48). — ^By an agreement betwen the Interur- ban Electric Co. and the City of Toronto, operating the Hydro-Electric System, the former undertook to "save harmless and in- demnify the said corporation .... against all loss, damages .... which the corpora- tion may . . . . have to pay .... by rea- son of any act, default or omission of the company or otherwise howsoever." An em- ployee of the company was kiUed in course of his employment and in an action by his personal representative the jury found that the city and the company were each guilty of negligence which caused the accident. — Held, that the agreement did not apply to the case of damages which the city would have to pay as a consequence of its own neg- ligence and neither relieved it from liability nor entitled it to indemnity. — Judgment of the Appellate Division (86 Ont. L. R. 269) affirmed. Toronto v. Lambert, liv., 200. 12._ Marine insurance — Abandonment — Repairs — Boston clause — Findings of jury — New trial — Practice — Evidence taken by commission — Judicial discretion. Ins. Co. of North America v. McLeod, C'out Gas. 214. 13. Habeas corpus — Criminal appeals — Grand jurors— Selection of talesmen — -Juris- diction. Re Menard, Cout. C'as. 313. 14. Life insurance — Misrepresentation — Findings of jury — ■ Evidence of experts — Glasses of opinions. Mutual Reserve Fund Life Assn. v. Dillon, Gout. Cas. 339. 15. Procedure — Charge to jury — Report by trial judge — New trial — Review on ap- peal, xxxiv., 265. See Pbactice. 16. Master and servant — Contract of ser- vice — Termination by notice — Incapacity of servant — Permanent disability— Findings of jury — 'Weight of evidence, xxxiv., 366. See Master and Servant. 17. Negligence — Electric wires — Tres- passer on electric company's poles— Evidence — Remarks of counsel — Contributory negli- gence ■ — Disagreement of jury — New trial, xxxiv., 698. See IfrajLiOENOK. 18. Dangerous way, works, etc. — -Negli- gence — Master and servant — Workmen^ Compensation for Injuries Act — Findings of jury — Evidence, xxxiv., 710. See Negligence. 19. Railways — Negligence — Free pass_ — Consideration for transportation — Misdirec- tion — Findings of jury — New trial — Ex- cessive damages — Art. 50S C. P. Q., xxxv., 68. See Pbactice. 20. Construction of contract — Implied cov- enant — Verdict — Damages — New trial, XXXV., 186. See Contbact. 21. Evidence — Verdict — New trial — Contract — Conditions — Misrepresentation — Non-disclosure — Warranty, xxxv., 266. See Evidence. 603 JUKY. 604 Proximate cause — New 22. Negligence trial, XXXV., 296. See Negligence. 23. Criminal law — Criminal Code, $s. 241, 243 — Wounding with intent — Verdict — Conviction — Crown case reserved, xxxv., 607. See Criminal Law. 24. Negligence — Dangerous ways, works, etc. — Master and servant — Findings of jury — New trial, xxxv., 625. See Negligence. 25. Negligence — Ferryhoat wharf — Dan- gerous way — Precautions for preventing ac- cidents — Evidence — Findings of jury — Non- suit, XXXV., 693. See Negligence. 26. Negligence — Findings by jury— 1- New trial — Evidence — Practice — Operation of railway — "The Railway Act," 51 Vict. c. 29, xxxvii., 1. See Negligence. 27. Negligence — TriaT — Finding of jury — Exercise of statutory privilege, xxxvii., 94. See Negligence. 28. New trial — Judgment in court helow on motion — Equal division — Appeal — Jurisdiction — Charge to jury — Misdirec- tion — Bias, xxxvii., 532. See AppiJal; New Trial. 29. Negligence — Railway crossing — Findings of jury — "Look and listen," xxxviii., 94. See Negligence. 30. Jury trial — Judge's charge — Prac- tical withdrawal of case — Evidence — New trial, xxxviii., 165i See New Teial. 31. Criminal law — Practice— Charge to jury — Crown case reserved — Reserved ques- tions — Dissent from affirmance of convic- tion — Appeal — Jurisdiction — Criminal Code, 1892, ss. 142, IJiS, Ikh, 150— R. S. C. (1906) c. U6, ss. 1013, 1015, 1016, 102^— Admis- sion of evidence- — Res gestce, xxxviii., 284. Sise Cbiminal Law. 32. Withdrawal of case from jury — New trial — Costs, xxxix., 202. See Action. 33. Findings of jury — Questions of fact — Duty of appellate court, xxxix. 336. See Practice. 34. Negligence — Employer and employee — Dangerous machinery — Want of proper protection — Voluntary exposure — Findings of jury — Charge of judge — Assignment of facts — Practice — Assessment of dam- ages, xxxix., 365. See Negligence. 35. Operation of railway — Yard siding — Sloping platform ■• — Private passage — Dan- gerous way — Negligence — Procedure at trial — Objections to charge to jury, xl., 194. See Practice. 36. Employer and employee — Improper appHances — Negligence — Proximate cause — Finding of jury — Evidence, xl., 396. See Negligence. 37. Negligence — Operation of tramway — Approaching cross-street — Rules of com- pany — Charge of judge — Contributory negligence — Findings of jury, xl., 540. See New Teial. 38. Unfair trial — Misdirection — Judge's charge — Bias ■ — Prejudice — Practice — New trial — Disposing of whole case. Cam. Gas. 112. See New Trial. 39. Evidence — Improper admission — Un- corroborated testimony of plaintiff — Contra- dictory evidence — Verdict against weight of evidence — New trial — Practice, Cam. Cas. 214. See Evidence. 40. Railways — Station buildings — Dan- gerous way — Invitation or license — Breach of duty — Negligence — Questions for jury. Cam. Cas. 262. See Negligence. 41. Right of appeal — Special leave to ap- peal per saltum — Questions in controversy — Negligence — Workmen's compensation for injuries — Damages — Amendment to plead- ings — Rule 615 — Nonsuit — Verdict — Procedure, Cout. Cas. 326. See Appeal." 42. Negligence ■ — "Lord Campbell's Act" — Findings of jury — Verdict — Damages, Cout. Cas. 343. See Negligence. 43. Operation of tramway — Negligence — Evidence — Findings of jury, Cout. Cas. 349. See Practice. 44. Practice — Evidence — Impeachment of testimony — Notice of imputations — Promis- sory note — Fraud — Suspicious circumstances — Transfer of negotiable instrument, Peters V. Perras, xlii., 244. 45. Damages — Negligence — Physical in- juries — Mental shock — Severance of dam- ages, xliv., 268. See Damages. 46. Negligence — Operation of railway — Fatal injuries — Statutory signals — Sighway crossing — Evidence — ABsenoe of eye-witness —Reasonable inference — Balance of proba- bilities — Findings of jury, xlv., 380. See Vebdiot. 47. Negligence — Railway — Findings of jury — Volens — Pleading. Grand Trunk Ry. Co. V. Brulot, xlvi., 629. 48. Company — Subscription for shares — Misrepresentation — Action for calls — Charge to jury^— Misdirection — O bjection — Pleading, Boechk V. Oowganda Mines, xlvi., 645. 49. Municipal corporation — Repair of highways — Statutory duty — "Unfenced trap'' in sidewalk — Misfeasance — Actionable nefflt- 605 JURY. 606 gence — Notice — Knoioledge — Personal in- juries — lAabilitv of corporation — Evidence-^ Findings of jury — "Res ipsa loquitur," xlvi., 45/r. See Evidence. 50. Criminal law — Indictment for murder Trial — Mvidenoe — Criminal intent — Pro- vocation — "Seat of passion" — Charge to jy/fy — Mislirection — Reducing charge to man- slaughter — New trial — "Substantial wrong'' —Criminal Code ss. 261, 1019— Appeal — Questions to ie reviewed, xlvii., 1. See Cbiminai, Law. 51. Malicious prosecution — ProiaMe cause — Evidence — Onus — Honest belief — Practice — Questions for jury, xlvii., 393. See Maiiciotjs Prosecution. 52. Negligence — Operation of tramway —r- Passenger riding on platform — Dangerous arrangement of car — Evidence, xlvii., 395. See Negligence. 53. Trial — Charge to jury — Misdirection — Constructive murder — Natural conse- quence of act — New trial, xlvii., 568. See Cbiminai. Law. 54. Negligence — Tramway — Explosion ^- Defective controller — Inspection, xlvii., 612. See Teamways. 55. Negligence — Common employment — Dangerous works — Safety of workmen — De- fective system — Employers' liability — Suffi- ciency of answers — Practice — Discontinu- ance against co-defendant — Release of joint tortfeasor, xlviii., 609. See Neoiigenoe. 56. Negligence — Dangerous works— Defec- tive system — Findings of jury — Suffioiency of answers — Practice — Discontinuance against co-defendant — Release of joint tortfeasor. Waugh-Milburn Construction Go. v. Slater, xlviii., 609. See Negligence. 57. Employer's liatiHty — Negligence — Arir swers iy jury — "Volenti non fit injuria" — Issue undecided — Practice — B. G. Supreme Court Rules, O. 68, s. 4 — New trial, xllx., ■VA. See New Teial. 58. Findings of fact — Inference iy jury — Determining cause of accident — Evidence to support verdict— Practice, xlix., 80. See Peactice and Peocedltee. 59. Negligence — Employer's liability — Ship laiourei — Disregard of rules — "Acci- dent in course of employment" — Action — Claim by dependents — Findings of jury — Evidence— Art. 1054 0. C, xlix., 136. See Negligence. 60. Construction contract — Sub-contract — Dangerous premises — Servant or agent — Building materials — Duty of principal con- tractor — Injury to invitee — Responsibility for damages-^Evidence — Findings of jury, xlix., 632. See Neqligencbl 61. Railways — Operation — Transfer of cars — Interswitching — Negligent coupling — Duty of train crew — Scope of employment — Employer' s liability — Findings of fact — Evi- dence, 1., 393. See Railwats. 62. Negligence — Dangerous works — Defec- tive system — Careless management — Fault of fellow servant — Efficient superintendence — Employer's duty — Evidence — Action — Liabil- ity at common law — "B.C. Employers' Lia- bility Act" — Pleading — Practice — Charge to jury — New trial. Bergklint v. West. Can. Power Co., 1., 39. See Negligence. 63. Railways — Operation — Transfer of cars — Interswitching — Negligent coup ling — Duty of train crew — Scope of employment — Employer's liability— Findings of fact — Evi- dence. O. T. P. R. R, Co. v. Pickering, 1., 393. See Railways. 64. Negligence — Defective system — Injury to employee — Evidence — Verdict — Practice — Exception to judge's charge — New points on appeal — New trial. Creveling v. Can. Bridge Co., li., 216. See Pbaoticb and Pbocedueb. 65. Operation of railway — Equipment — Coupling apparatus — Duty to provide and maintain — Projection of employee — Inspec- tion — "Inevitable accident" — Negligence — Findings of jury — Evidence — Common em- ployment — Conflict of laws — "Railway Act," R. S. C, 1906, c. S7, s. 264— Construction of statute — Vis major. Phelan v. G. T. P. Ry. Co., li., 113. See Railways. 66. Libel — Business reputation — Action by incorporated company — Tru-fh of alleged facts — Fair comment— Justification — Public interest — Qualified privilege — Charge to jury — Misdirection — Misleading statements — Practice — Evidence — Special damages — New trial. Price v. Chicoutimi, li., 179. See Libel. 67. Railways — Operation^Eguipment — Coupling apparatus — Duty to provide and maintain — Protection of employees — Inspec- tion — "Inevitable accident^' — Negligence — Findings of jury — Evidence — Common em- ployment — Conflict of laws — "Railway Act," R. S. C., 1906, c. 37, s. 264— Construction of statute — Vis major, li., 113. See Negligence. 68. Negligence — Defective system — Injury to employee — Evidence — Verdict — Practice — Exception to judge's charge — New points on appeal — Neiv trial, li., 216. See Negligence. 69. Libel — Business reputation — Action by incorporated company — Truth of alleged facts — Fair comment — Justification — Pub- lic interest — Qualified privilege — Charge to jury — Misdirection — Misleading statements — Practice — Evidence — Special damages — New trial, li., 179. See Libel. 607 LACHES. 008 70. Practice and procedwe — Trial hy jury — Personal wrongs — Appeal — Taking new objection^Art. 1056 G. C.—Arts. J,U et seq. Cf_ p_ Q. — "Lord CamolelVg Act" — Charge to jury — Opinion on questions of fact, lii., 644. See Pkactice. 71. Damages — Verdict — Excessive award Personal injuries — Complete reparation — Loss of prospective earnings — Pain and suf- fering — Evidence — Mortuary tables — Prac- tice — THew trial, lii., 349. See Damages. 72. Damages — Verdict — Excessive award — Personal injuries — Complete reparation — Loss of prospective earnings — Pain and suffering — Evidence ■ — Mortuary tables — Practice — New trial. C. P. R. v. Jackson, lii., 281. See Damages. 73. Action by dependent — Injury sus- tained outside province — Right of action in Manitoba — Evidence — Answers by jury. Lems V. G. T. P., lii., 227. • See Negligence. 74. Railways — System of construction — Exposed switch-rods — negligence — Dan- gerous contrivance — Verdict — Findings against evidence. Mallory v. W'p'g Joint Terminals, liii., 323. See Railwats. JUS PUBLICUM. Title to lands — Grant from Grown — Implied reservations — Description — Navi- gable waters — Floatable streams — Inlet of navigable river — Crown domain — Public law — Construction of deed — Possession — Es- toppels—Evidence — Waiver, xxxiv., 603. See Rivers and Streams. person is brought before a justice of the peace charged with an offence committed within the Province, but out of the limits of the jurisdiction of sucb justice, the latter, in his discretion, may either order the ac- cused to be taken before some justice having jurisdiction in the place where the offence was committed (Or. Code [1892] sec. 557; Cr. C. [1906] sec. 665) or may proceed as if it had been committed within his own jur- isdiction. — S. was brought before the stipen- diary magistrate of the City of HaUfaz charged with having committed burglary in Sydney, C.B. — Held, that the stipendiary magistrate could, with the consent of the accused, try him summarily under Or. C. [1892] sec. 785 as amended in 1900. (Cr. C. [1906] sec. 777). Re Seeley, xli., 5. 3. Courts of general sessions of the peace — Criminal law — Jurisdiction of m,agistrate — Criminal Code, s. 785 — Oonstitutional law — Constitution of criminal courts, xxxiv., 621. 'See Criminal Law. 4. Criminal law — Summary convicUoiis and orders — Procedure by magistrate — De- lay in issuing commitment — Term of im- prisonment — 'Commencem.ent of sentence — "Canada Temperance Act, 1378," Cout. Cas. 71. See Habeas Corpus. 5. Habeas corpus — Criminal law — Juris- diction of judge of Supreme Court of Can- ada — Issue of writ out of jurisdiction of provincial courts — Concurrent jurisdiction —R. 8. G. (1886) c. 135, s. 32 — Construc- tion of statute — Constitutional law — Powers of Parliament — "Inland Revenue Act" — • "Selling and delivering a still and worm" — Cumulative charge — Summary conviction — Adjournment — Conviction in absence of ac- cused, Cout. Cas. 110. See Habeas Corpus. JUSTICE OF THE PEACE. 1. Criminal law — Indictable offence — Summary trial — Jurisdiction of magistrate — Offence committed in another county.'] — If a person is brought before a justice of the peace charged with an offence committed within the province, but out of the limits of the jurisdiction of such justice, the latter, in his discretion, may either order the ac- cused to be taken before some justice having jurisdiction in the place where the offence was committed (Cr. Code [1892] sec. 557; Cr. C. [1906] sec. 665) or may proceed as if it had been committed within his own juris- diction. — S. was brought before the stipen- diary magistrate of the City of Halifax charged with having committed burglary in Sydney, C.B. — • Held, that the stipendiary magistrate could, with the consent of the accused, try him summarily under (Cr. C. [1892] sec. 785) as amended in 1900 (Cr. C. [1906] sec. 777). Re Seeley, xli., 5. 2. Criminal law — Indictable offence — Sum- mary trial — Jurisdiction of magistrate — Of- fence committed in another county.]— It a I,ACH£S. 1. Receiver — Management of business — Supervision and control — Neglect.'] — The receiver of a partnership who is directed by the court to manage the business until it can be sold should exercise the same reason- able care, oversight and control over it as an ordinary business man would give to his own business and if he fails to do so he must make good any loss resulting from his neg- ligence. — ^The tact that the receiver is the sheriff of the district does not absolve him from this obligation though the partners consented to his appointment knowing that he would not be able to manage the business in person.. — The Chief Justice and Mac- lennan, J., dissented, taking a different view of the evidence. Plisson v. Duncan, xxxvi., 647. 2. Mandate — Principal and surety — Neg- ligence — Release of surety — Mortgage — Con- struction of contract — Prinoipal and agent, XXXV., 663. See Principal and Sukett. 609 LANDLOBD AND TENANT. 610 3. Breach of contract — Breach of trust — Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Ac- count — Evidence — Salvage — Indemnity for necessary etepenses — Laches — Estoppel, xxxviii., 198. See Tetjsts. 4. B(mks and hanking — Forged cheque — ■ Negligence — Responsiiility of drawee — Pay- ment-— Mistake — Indorsement — Implied warranty — Principal and agent — Action — - Money had and received — Change in posi- tion, xl., 366. See Banks and Banking. 5. Municipal corporation — Assessment and taxes — Meetings of council — Court of Revision — ■ Transaction of business outside limits of municipality — Place of meeting — Revision of assessment rolls — By-Jaws — Sale for arrears of taxes ■ — • Construction of stat- ute — Statutory relief — Estoppel — Acqui- escence — Limitation of actions, xlv., 425. See Municipal Corporation. 6. Sale of land — Contract — Defeasance — "Time to 6e of the essence of the contract" — Deferred payments — Notice after default — • Abandonment — Specific performance, xlix., 14. See SpEcino Performance. 7. Lease of land — Option to purchase — Specific performance — Right of action. St. Denis V. Quevillon, li., 603. See Action. LANDLOBD AND TENANT. 1. Action, 1-.2. 2. Contract, 3-13. 3. Determination of Tenancy, 14-15. 4. Negligence, 16-17. 5. Renewal of Lease, 18. 6. Other Cases, 19-35. 1. Action. 1. Ownership — Lease — ■ Sheriff's sale — Title to landr-— Insurable interest — Fire in- surance trust — Beneficiary — Principal and agent— Fraudulent contrivances — Estoppel.} — The lessor of real estate insured leased property "in trust," and notified the insur- ers that the lessee, his son, was the real beneficiary. The lessee paid all the pre- miums and, the property haviijg been seized in execution of a judgment against the les- sor, the lessee purchased at the sheriff's sale and became owner in fee. He afterwards increased the insurance, the insurer acknow- ledging, in the second policy, the existence of the first in his favour. The property having been destroyed by fire, payment of the amount of the first policy to the lessee was opposed by a judgment creditor of the lessor and the money attached in the pos- s.c.D. — 20 session of the company. — Held, that the les- see having had an insurable interest when the first policy issued and being, when he acquired the fee and when the loss occurred, the only person having such interest, he was entitled to the payment of the amount of the policy insured upon the application of the lessor. — Meld, also, that even if the les- see knew that his father was embarrassed at the time he took the lease and when he pur- chased the property at the sheriff's sale, that would not make the transaction fraudulent as against the father's creditors. — A credi- tor who was a party to the action against the lessor in which the property was sold in execution subject to tlie lease and who did not oppose sucb sal« can not, afterwards, contest payments of the amount of the policy on the ground of fraud. Langelier v. Gharlebois, xxxiv., 1. 2. Tenant by sufferance — Use and occu- pation of lands — Art. 1608 C. C. — Promise of sale — Vendor and purchaser — Reddition lie compte — Action ex vendito — Practioe.Jl- — ■ The action for the value of the use and oc- cupation of lands does not lie in a case where the occupation by sufferance was be- gun and continued under a promise of sale ; in such a case the appropriate remedy would be by an action ex vendito or for reddition de compte. Gantin v. Berubi, xxxvii., 627. 2. Contract. 3. Canal — Watei-powei' — Improvements on canal — Temporary stoppage of power — Compensation — Total stoppage — Measure of damages — Loss of profits.^ — A mill was operated by water-power taken from the surplus water of the Galops Canal under a lease from the Crown. The lease provided that in case of a temporary stoppage in the supply caused by repairs or alterations in the canal system the lessee would not be entitled to compensation unless the same continued for six months, and then only to an abatement of rent. — Held, Idington, J., dubitante, that a stoppage of the supply for two whole seasons necessarily and bond fide caused by alterations in the system was a temporary stoppage under this provision. — The lease also provided that, in case the flow of surplus water should at any time be required for the use of the canal or any public purpose whatever, the Crown could, on giving notice to the lessee, cancel the lease, in which case the lessee should be entitled to be paid the value of all the build- ings and fixtures thereon belonging to him with ten per cent, added tnereto. The Crown unwatered the canal in order to execute works for its enlargement and improvement, contemplating at the time only a temporary stoppage of the supply of water to the lessee, but later changes were made in the proposed work which caused a total stoppage and the lessee, by petition of right, claimed damages. — Held, Girouard, J., dissenting, that as the Crown had not given notice of its intention to cancel the lease the lessee was not entitled to the damages provided for in case of can- cellation. — Held also, that the lessee was 611 LANDLOED AND TENANT. 613 not entitled to damages for loss of profits during the time his mill was idle owing to the water being out of the canal. — Judgment of the Exchequer Court (9 Ex. C. R. 287) affirmed, Girouard and Idington, JJ., dis- senting. Beach v. The King, xxxvii., 259. 4. Lessor and lessee — Covenant to renew — Severance of term — Consent of lessor — Enforcement of covenant — Expropriation — Persons interested.] — ^The covenant for re- newal of a lease for a term of years is in- divisible and if the lessee assigns a part of the demised premises neither he nor his assignee can enforce the covenant for re- newal as to his portion. — ^The assignment of part of the leasehold premises included an assignment of the right to renewal of the lease for such part and the lessor executed a consent thereto. — Held, that he did not thereby agree that his covenant for renewal would be exercised in respect to a part only of the demised premises. — In the case men- tioned the lessee who has severed his term cannot, when the land demised is expropri- ated by a railway company, obtain compen- sation on the basis of his right to a renewal of his lease. — Judgment of the Court of Ap- peal (18 Ont. L. R. 85) aflSrmed. Alexan- der Brown Milling Go. v. Canadian Pacific Railway Co., xlii., 600. 5. Lease — Construction of covenant — Taxes — Partial exemption.'] — A society owned a building worth about $20,000 which, by the statute of the province, was exempt from municipal taxation so long as it was used exclusively for the purposes of the society. A portion of the building having been used at intervals for other purposes, it was assessed at a valuation of $1,000 and the society paid the taxes thereon for some years. Such portion was eventually leased for a term of years to be used for other pur- poses than those of the society, and the val- uation for assessment was increased to $10,- 000. The lease contained this covenant : — "The said lessees . . . shall and will well and truly pay or cause to be paid any and all license fees, taxes or other rates or assessments which may he payable to the City of Halifax, or chargeable against the said premises by reason of the manner in which the same are used or occupied by the lessees hereafter, or which are chargeable or levied against any property belonging to the said lessees (the said lessor, however, hereby agreeing to continue to pay as heretofore all the regular and ordinary taxes, water rates and assessments levied upon or with respect to said premises, and the personal property thereon belonging to the lessor)." — The society was obliged to pay the taxes on such increased valuation and brought action to recover the amount so paid from the lessees. Seld, Fitzpatrick, C.J., and Anglin, J., dissenting, that the taxes so paid were "regular and ordinary taxes" which the les- sors had agreed to pay as theretofore and the lessees were not liable therefor on their covenant. Saint Mary's Young Men's So- ciety V. Allee, xliii., 288. 6. Fixtures — Lessor and lessee — Buildings placed on leased land — Evidence — Onus of proof.] — In a dispute as to the degree and object of the annexation of buildings erected upon leased land by the tenant in occupation under the lease, the onus of shewing that in the circumstances in which they were placed upon the land there was an intention that they should become part of the freehold lies upon the party who asserts that they have ceased to be chattels. Holland v. Hodgson (L. R. 7 C. P. 328) followed. Bing Eee v. Yich Chong, xliii., 334. 7. Lease ■ — Covenant for renewal — Con- struction.] — A lease for 21 years of mill- races and lands on the old WeUand Canal contained the covenant that : "After the end of 21 years, as aforesaid, if the said (lessors) do not continue the lease of the said water and works" they would compensate the les- sees for their improvements. — Held, Girou- ard and Duff, JJ., dissenting, that at the end of the 21 years the lessees were entitled to a renewal of the term but not to a new lease containing a similar covenant for re- newal or compensation. Thty had a right to renewal or compensation but not to both. — After the original term expired the lessees remained in possession, paying the same rental as before, for a further term of 21 years, no formal lease therefor having been executed and none demanded or tendered for execution. Ten years after the expira- tion of this second term they were dispos- sessed and claimed compensation for im- provements by petition of right. — Held, that the rights of the lessees were the same as if the original term of 21 years had been form- ally continued, or renewed, for a further like term. — Held, per Idington, J., Girouard, J., contra, that the lessees having obtained a renewal their right to compensation was gone. — Per Davies and Anglin, JJ. — The lease was probably not renewed within the meaning of the lessor's covenant, but there having been no proof of a demand for re- newal and the lessees having remained in possession for the entire period for whidn they could have claimed a renewal, they can have no right to compensation for improve- ments. If they ever had such a right in default of obtaining a renewal it is barred by the Statute of I/imitations. The King v. St. Catharines Hydraulic Co., xliii., 595. 8. Lease — Water lots — Status of lessee — Riparian owner — ^Access to lot — Injunc- tion.] — S. is a lessee under lease from the City of St. John of a water lot in the har- bour; the F. K. Co. are lessees of the next lot to the south, and there are other lots to the south between that of S. and the fore- shore of the harbour. By his lease, S. has a right of access to and from his lot on the east and west sides. — Held, that S. was not a riparian owner and had no rights in re- spect of the water lot other than those given him by his lease. Hence, he could not restrain the F. K. Co. from erecting a wharf on the adjoining lot which would pre- vent access to his from the south, a right of access not provided for in his lease.- — Judg- ment appealed from (40 N. B. Rep. 8) re- versed, Idington, J., dissenting. Francis Kerr Co. v. Seely, xliv., 629. 9. Covenant to pay for improvements — Buildings and erections — Foundation — Pil- ing and filling in — Intention of lessee.] — The City of St. John leased certain mud 613 LANDLOED AND TENANT. 614 flats, the lease coniainnig a covenant that if the lessees should "put up any buildiiigs and erections tor manuiracturing purposes" thereon, the same, at the expiration of the term, should be appraised in the manner provided and the city should have the option of paying the appraised value or renewing the lease. On expiration ot a term the city elected to pay. — Held, that the lessees were entitled to be paid the value of piling and filling in on said lots to form a foundation for buildings erected and in existence at the expiration of the lease, but not for such pil- ing and filling in at a place where no build- ings existed, but upon which buildings were intended to be erected for manufacturing purposes. City of St. John v. Gordon, xlvi., 101. 10. Lessor and lessee — Lease of adjoining lots — Separate demises — Assignment to one person — Termination of lease — Valuation of improvements — Valuation as a whole — Con- sent of counsel.} — ^Two leases of adjoining lots were, by assignment, vested in C. Each lease provided that if, on its expiration, the lessor refused to renew he should give no- tice thereof to the lessee and that valuators should be appointed to value the buildings on the land. Notice was given under each lease and valuators were appointed who, without objection by the lessor's counsel, valued the buildings on the two lots as a whole and fixed $35,000 as the value of them all. In an action by the lessee to re- cover this amount. — Held, reversing the judgment of the Appellate Division (32 Ont. L. R. 48), Davies and Anglin, J J., dissent- ing, that the valuation must be set aside, that the value of the buildings on the lots should have been ascertained separately. — Held, also, applying the principle of Came- ron V. Cuddy ([1914] A. C. 651) that the action should not be dismissed, but that the same or other valuators should be appointed to ascertain the value in a proper manner. Irwin V. Camplell, li., 358. 11. Lease of land — Special condition — Promise of sale — Option — Facte de prefer- ence — Unilateral contract — • Real rights — Registry laws— Arts. 2082, 20S5 C. C. — Specific performance — Damages — Right of action.] — In a lease of lands for the term of five years, which was registered, the lessor agreed to sell the property to the lessee for a certain price at any time during the term of the lease. It was also stipulated that in the event of a proposed sale to any other person, for any price whatsoever, the lessor should notify the lessee thereof and give him the right, by preference, to exercise his option to purchase. After the expiration of about two years of the term, the lessor served written notice on the lessee requiring him to exercise his option forthwith and stating that, in default, he would sell to another person, without, however, mention- ing the terms and conditions of the proposed feale and on request by the lessee, these par- ticulars were refused. The lessee took no action on this notice and the lessor executed a deed of sale of the property to P. by con- veyance in which the latter undertook that the registered lease would be maintained in fpfce. Two years later the lessee brought suit against thelessor and P. for specific per- formance of the agreement to sell and, alter- natively, for damages against the lessor for breach of contract. — Per curiam. — ^The no- tice as given, without mentioning the terms and conditions of the proposed sale to P.. was ineffectual to place the lessee in default in regard to exercising his option ; the rights of the lessee under the deed of lease con- tinued to subsist during the whole term of the lease. — Per Idington and Brodeur, JJ. (Duff land Anglin, J J., contra). — The pro- tnise of sale and pacte de preference were accessory to the contract of lease and created a real right in favour of the lessee which was capable of being registered against the leased lands. — ^The registration of the, deed of lease and actual knowledge by the pur- chaser of the rights of the lessee thereunder placed P. in the position of a purchaser in bad faith and, consequently, he became bound by thfe obligations resting upon the lessor and specific performance should be decreed against him as well as against the lessor. — Per Duff and Anglin, JJ. — The pro- mise of sale and pacte de preference, being stipulations separate and distinct from the contract of lease, did not create real rights in the property leased which might be pro- tected by registration under the registry laws of the Province of Quebec. Under the laws of that province (there being no evi- dence of bad faith on the part of the pur- chaser), the purchase of the leased property with knowledge of the owner's obligations, in personam, could not render such pur- chaser liable to a decree for specific perform- ance thereof. — Per Fitzpatrick, C.J., and Anglin, J. — The plaintiff had the right to bring his action notwithstanding the ex- piration of the period of two years after the date of the sale ; the wrongful act of the lessor, in violation of his obligations under the deed of lease, did not impose upon the lessee the duty of asserting Ms rights at a period earlier than that required in his op- tion. — Judgment appealed from (Q. R. 23 K. B. 436) reversed. Saint-Denis y. Que- villon, li., 603. 12. Lease — Licensed hotel — Accom,moda- tion required by regulations' — Covenant Jjy lessor — Repairs and improvements—Loss of liquor license — Determination of lease — Im- plied condition.] — In a lease of property, upon which was situated a hotel licensed to sell liquors, the lessor covenanted to repair and improve the premises in compliance with municipal regulations which might be made from time to time in respect to hotels for which liquor licenses should be granted. During the term of the lease a regulation was made, requiring licensed hotel premises to be enlarged and improved in cer- tain respects, with which the lessor did not comply and, in consequence, the renewal of the liquor license was refused at the end of the license year then current. — Held, that neither the circumstances in which the l^ase was entered into nor the lessor's cove- nant to make repairs and improvements gave rise to an Implied condition to the effect that the obligation of the tenant to pay the rent reserved should terminate upon the hotel, through no fault attribut- able to the lessee, ceasing to be licensed pre- mises. Orimsdick v. Sweetman ( [1909] 2 K. B. 740) followed. — Judgment appealed 615 LANDLORD A]S"D TEXANT. 616 from (21 B. 0. Rep. 19) affirmed. Vmr convey Breweries, Limited v. Dana, lii., lo4. 13. Construction of statute — Alberta "As- signments Aet" — Assignment for benefit of creditors — Occupation of leased premises — Liability of official assignee.^ — The Alberta "Assignments Act," as amended by the Al- berta statutes, ch. 4, sec. 14 of 1909 and ch. 2, sec. 12 of 1912, provides that assignments for the general benefit of creditors must De made to an official assignee appointed under the Act and that the assignment shall vest in such assignee all the assignor's real and personal property, credits and effects which may be seized and sold under execution. The lessee of premises held under a lease from the plaintiffs made an assignment to the defendant who took possession thereof and, on threat of distress, agreed that he would guarantee the rent so long as he remained in occupation. After three months, the de- fendant quitted the premises and notified the landlord that he would no longer be responsible for or pay the rent. In an ac- tion for breach of the covenants of the lease and to recover the rent accruing to the end of the term: — Held, reversing the judgment appealed from (8 Alta. L. R. 226), Iding- ton and Brodeur, JJ., dissenting, that by the effect of the assignment and entry into possession the term of the lease passed to the official assignee who, thereupon, became liable for the whole of the rent accruing for tie remainder of the term. Northwest Theatre Co. V. MacKinnon, lii., 588. 3. Detekmination of Tenancy. 14. Lessor and lessee — Covenant for re- newal — Option of lessor — Second term — Possession by lessee after expiration of ierm — Construction of deed — Specifio per- formance.] — ^A lease for a term of years provided that when the term expired any buildings or improvements erected by the lessees should be valued, and it should be optional with the lessors either to pay for the same or continue the lease for a further term' of like duration. After the term ex- pired, the lessees remained in possession for some years when a new indenture was ex- ecuted which recited the provisions of the original lease and, after a declaration that the lessors had agreed to continue and ex- tend the same for a further term of fourteen years from the end of the term granted thereby at the same rent and under the like covenants, conditions and agreements as were expressed and contained in the said recited indenture of lease and that the lessees had agreed to accept the same, it proceeded to grant the further term. The last men- tioned indenture contained no independent covenant for renewal. After the second term expired the lessees continued in pos- session and paid rent j.or one year when they notified the lessors of their intention to abandon the premises. The lessors refused to accept the surrender and, after demand of further rent and tender for execution of an indenture granting a further term, they brought suit for specific performance of the agreement implied in the original lease for renewal of the second term at their option. — Held, affirming the judgment of the court below (28 N. B. Rep. 1) , Ritchie, O.J., and Taschereau, J. dissenting, that the lessees were not entitled to a decree for specific performance. — Held, per Gwynne, J., that the provision in the second indenture grant- ing a renewal under the like covenants, conditions and agreements as were contained in the original lease, did not operate to in- corporate in said indenture the clause for renewal in said lease which should have been expressed in an independent covenant. — Per Gwynne, J. (Patterson, J., hesi- tante), that assuming the renewal clause was incorporated in the second indenture, the lessees could not be compelled to accept a renewal at the option of the lessors, there being no mutual agreement therefor ; if they could the clause would operate to make the lease perpetual at the will of the lessors. — Per Gwynne and Patterson, JJ., that the option of the lessors could only be exercised in case there were buildings to be valued erected during the term granted by the in- strument containing such clause ; and, if the second indenture was subject to renewal, the clause had no effect, as there were no build- ings erected during the second term. — Per Gwynne, J. — The renewal clause was in- operative under the statute of frauds, which makes leases for three years and upwards, not in writing, have the effect of estates at will only and, consequently, there could be no second term of fourteen years granted except by a second lease executed and signed by the lessors.— Per Ritchie, C, and Tasche- reau, J., that the occupation by the lessees after the term expired must be held to have jjeen under the lease and to signify an inten- tion on the part of the lessees to accept a renewal for a further term as the lease pro- vided. Sears v. City of Saint John (xviii., 702) ; Cam. Oas. 486. 15. Lessor and lessee — Lease for years — Covenant to renew — Option of lessor — Eject- ment — Equitahle plea.2 — ^A lease for years provided that on its termination the lessor, at his option, could renew or pay for im- provements. When it expired the lessor notified the lessee that he would not renew and that he had appointed a valuator of the improvements requesting her to do the same, which she did. The valuation was made and the amount thereof tendered to the lessee which she refused on the ground that valu- able improvements had not been appraised, and refusing to give up possession when de- manded the lessor brought ejectment. By her plea to the action the lessee set up the invalid appraisement and claimed that as the lessor's option could not be exercised until a valid appraisement had been made he was not entitled to possession. By a plea on equitable grounds she again set up the invalid appraisement and asked that it be set aside and the lessor ordered to speci- fically perform the condition in the lease for renewal and for other and further relief. — Held, affirming the judgment appealed against (38 N. B. Rep 465), Idington, .J, dissenting, that though the appraisement was a nullity that fact did not defeat the action of ejectment ; that the acts of the lessor in giving notice of intention not to renew, demanding possession and bringing ejectment, constituted a valid exercise of 617 LAXDLORD AXD TEXAXT. 618 his option dnder tlie lease, and that the les- sor was entitled to possession. — Held, also, Idington, J., dissenting, that sec. 289 of the "Supreme Court Act of New Brunswick" did not authorize that court to grant relief to the lessee under her equitable plea ; that such a plea to an action of ejectment must stajte facts which would entitle the defen- dant to retain possession, which the plea in this did not do. Porter v. Purdy, xli., 471. 4. Negligence. 16. Negligence — Trespasser — Licensee — Overholiing tenant — ■ Master and ser- vant.'] — A trespasser or bare licensee in- jured through negligence may maintain an action. — ^The workmen of a contractor for tearing down portions of a building in order to make alterations turned on a water-tap in a room where they were working and neglected to turn it off, whereby goods in the Storey below, were damaged by water. — Held, Davies and Nesbitt, JJ., dissenting, that the act of the workmen was done in course of their employment : that it was negligent ; and that the owner of the goods could re- cover damages though he was in possession merely as an overholding tenant who had not been ejected. Sievert v. Broohfield, XXXV., 494. 17. Negligence — Master and servant — Acts in course of employment — Alterations to plumUng — Damage iy steam, etc. — Re- sponsiMlity of contractors — Control of pre- mises — Cross-appeal hetween respondents^ Practice.'] — ^In the lease of a shop, the land- lord agreed to supply steam heating and, in order to improve the system, engaged a firm of plumbers to make alterations. Before this work was completed and during the absence of the tenant, the plumbers' men, who were at work in another part of the same building, with steam cut off for that purpose, at the request of the caretaker employed by the landlord, turned the steam on again which, passing through unfinished pipes connected with the shop, escaped through an open valve in a radiator and in- jured the tenant's goods. — Held, that the landlord was liable in damages for the negli- gent act of his caretaker in allowing steam to be turned on without ascertaining that the radiator was in proper condition to re- ceive the pressure, and that the plumbing firm were also responsible for the negligence of their employees in turning on the steam, under such circumstances, as they were act- ing in the course of their employment in what they did although requested to do so by the caretaker. — ^The judgment appealed from (16 Man. R. 411) was affirmed with a variation declaring the plumbers jointly liable with the landlord.^The action _was asainst the two defendants, jointly, and" the plaintiff obtained a verdict, at the trial, against both. The Court of Appeal con- firmed the verdict as to McN. and dismissed the action as to the other defendants. McN. appealed to the Supreme Court of Canada, making the other defenrlants respondents on his appeal.— HeZtJ, that the plaintiff, respon- dent, was entitled to cross-appeal against the said defendants, respondents, to have the verdict against them at the trial re- stored. (Leave to appeal to Privy Council was refused, 12th March, (1908). J/c Kichol V. Malcolm, xxxix., 265. 5. Renewal op Lease. 18. Lease — Covenant not to assign — As- signment to co-partner — Right to renewal- Notice.] — Where partners are lessees of a term for years and have covenanted not to assign or sub-let without the consent in writ- ing of the lessor an assignment by one of his interest in the lease to his co-partner without such consent is a breach of such covenant. Varley v. Goppard (L. R. 7. O. P. 505) followed. — The lease provided that, having performed all their covenants and agreements contained in the lease the lessees on giving six months' notice in writing to the lessor before the expiration of the term that they required it, would be entitled to a renewal. — Held, that a breach (after the said notice was given) of their covenant in the lease not to assign without leave caused a forfeiture of the right to renewal. — ^Judgment appealed from (17 Ont. L. E. 254) affirmed. Loveless v. Fitzgerald, xlii., 254. 19. Mining lease — Prospector's license — Testing machinery — Annexation to the free- hold — Trade fixtures — Fi. fa. de. honis — Sale under execution, xxxv., 539. See Execution. 20. Title to land — Conveyance in fee — Reservation of life estate — Possession — Ejectment, xxxvi., 231. See Title to Land. 21. Equita'ble mortgage — Mines and min- erals — Lease of mining lands — Sheriff's sale — Purchase by judgment creditor of mort- gagee — Registry laws — Priority — Actual notices-Lien for Crown dues paid as rent — O. 8. N. B. {1903), c. SO, s. 139, xxxvii., 517. See Mines and Mining. 22. Tenant 'by sufferance — Use and occur pation of lands — Art. 1608 G. C. — Promise of sale — f^endor and purchaser — Reddition de compte — Actio ex vendito — Practice, xxxvii., 627. See Action. 23. Dominion mining regulations — Hy- draulic mining — Placer mining — 'Water grant — Conditions of grant — User of flowing wa- ters — Diversion of watercourse — Dams and flumes — Construction of deed — Riparian rights — Priority of right — Injunction, xxxviii., 79. See Mines and Mining. 24. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — S«6- sequent issue of placer mining licenses — Damages — Pleading and practice — State- ment of claim — Cause of action, xxxviii., 542. See Mines and Mining. 619 LEGACY. 630 25. Possessory action — Trouble de posses- sion — Right of action — Actio negatoria ser- vitutis — Trespass — Interference with watercourse — Agreement for user — BJapira- tion of license by non-use — Tacit renewal — Cancellation of agreement — Recourse for damages, zxxix., 81. See Action ; Pbaotioe. 26. Landlord and tenant-^Negligence — Master and servant — Acts in course of em- ployment — Alterations in plumbing — Dam- age by steam, etc. — Responsibility of contrac- tors — Control of premises — Cross-appeal be- tween respondents — Practice, xxxix., 265. See Landloed and Tenant. 27. Patent law — Canadian Patent Act — R. 8. C. (1906) c. 69, s. S^Mamufacture— sale — Lease or license, xxxix., 499. jSee Patent of Invention. 28. Supply of electric light — Cancellation of contract — Condition, for terminating ser- vice — Interest in premises ceasing — "Heirs" — "Assigns," xxxix., 567. See Conteaot. 29. Mining regulations — Hydraulic lease ^-Breach of conditions — Construction of deed — Forfeiture — Right of lessees — Proce- dure of inquiry — Judicial duties of arbiter, xi., 281, 394. See Mines and Mining. 30. Title to land — ^Leose for years — Pos- session by sub-tenant — Purchase at sheriff's sale — Adverse occupation — Evidence ■ — Conveyance of rights acquired — Compromise — Waiver — Estoppel, Cout. Oas. 158. See Title to Land. 31. Mechanics' lien — Construction of stat- ute — "Alberta Mechanics' Lien Act" — 6 Edw. VII., c. 21, ss. It, 11 — Buildvng ereetei by lessee — Liability of "owner," xliv., 86. See Lien. 32. Title to land — Possession — Prescrip- tion — Interruptive acknowledgment — Evi- dence, xliv., 130. See Title to Land. 33. Construction of statute — Fishery and game leases — Personal servitude — Possession — Use and occupation — Right of action - — Action en complainte — Renewed leases — Priority — Watercourses — Works to facilitate lumbering operations — Driving logs — Storage dams — Penning back waters out of track of traifsmission — Damages — Rights of lessees — Injury to preserves — Injunction — Demolition of works, xlv., 1. See RivEES and Stbeams. 34. Crown lands — Assessment and taxes — Interest of occupier — Constitutional law — Exemption from taxation — Construction of statute — Recovery of tames — Non-resident — Action for debt — Jurisdiction of provincial courts, xlix., 563. See Constitutional Law. 35. Crown — Dominion lands — Lease of mining areas — "Dominion Lands Act," s. kt — Statutory regulations — Conditions of lease — Defeasance — Notice — Cancellation on de- fault — Forfeiture of rights — Principal and agent — Solicitor, lii., 317. See Ceown. LAND TITLES ACT. "Land Titles Act, 189^1 — Notice of Us pendens — Caveat — Litigious rights — Ir- regular registration — Indorsements on cer- tificate of title — Construction of statute.'] — Under the provisions of "The Land Titles Act, 1894," section 126, a bond, fide pur- chaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispen- dence which has been improperly filed and noted upon the folio of the register contain- ing the certificate of title as an incumbrance or charge upon the land. The exception as to fraud referred to in the 126th section of the Act means actual fraudulent transactions in which the purchaser has participated and does not include constructive or equitable frauds. The Assets Company v. ifere Roihi (21 Times L. R. 311) referred to and ap- proved. Syndicat Lyonnais Da Klondyke y. McOrade, xxxvi., 251. And see Constittttional Law: Title to Land; Tobbens System; Yukon Teb- BITOBY. LANES. 1. Title to land — Servitude — Construction of deed — Reservations — "Representatives" ■ — Owners par indivis — Common lanes — Right of passage — Private wall — Windows and openings on line of lane — Arts. 5SS-5S8 C. C, xxxvi., 618. See Sebvitude. 2. Title to land — Construction of deed — Easement appurtenant — Vse of common lane — Overhanging fire-escape - — Encroachment on space over lane — Trespass — Right of action, xl., 188. See Deed. 3. Title to land— Easement appurtenant — User of lane — Prescription — Agreement for right of way — Construction of contract — Practice, Cam. Oas. 352. See Easement. LEASE AND HIRE. See Hieing. LEGACY. 1. Construction of wiU — Description of legatee — Devise "to my wife'' — BigarMus marriage — Evidence — Burden of proof, xl., 210. See Wnx. bSJl LEGISLATIOX. G23 2. WUl — Powers of eaecutora — Winding- tip estate — Time limit — Special legislation — Extension of time — S Edw. VII. c. 1S6 (Que.) — Construction of statute, xl., 489. See WlXL. 3. Dowereas — Title to land — Prescription — Statute of limitations — Heirs at law — Parol evidence — Win — Residuary devise. Cam. Cas. 338. See Title to Land. And see Wnx. 4. Will — Extension of powers of executors — Universal legatee — Special legacy — Appeal — Jurisdiction — Amount in controversy — Or- der to take accounts — Interlocutory judg- ment — Costs, xlvii., 400. See Appeai. LEGAL MAXIMS. 1. "Sic utere tuo at alienum non Iwdas," XXXV., 255. See Nuisance. 2. "Volenti non fit injuria," xxxv., 452. See Negligence. 8. "Actus curies neminem gravahit," xxxvil., 79. See Ceetiobaei. 4. "En fait de meubles possession vaut titre." See Execution. 5. "Main de justice ne dessaisit pas." See Execution. 6. "Res ipsa loquitur." Dominion Fish Co. V. Isiester, xliii., 637. See Negligence. 7. "Res ipsa loquitur," slvi., 457. See Evidence. 8. "Volenti non fit injuria," xlvii., 403. See Kailways. 9. Ex turpi causd non oritur actio, xlix., 271, 295. 10. Nemo auditur propriam turpitudimem allegans, xlix., 271, 277, 296. 11. Porior est conditio defendentis, xlix., 271, 296. 12. Volenti non fit injuria, xlix., 43. 13. Fre insurance — Bawdy house — Im- moral contract — Legal ma/nim — Ex turpi causd, non oritur actio. Dom. Fire Ins. v. Nahata, Hi., 294. See Insubance, Fiee. 14. "Omnia prcesumuntur rite esse acta." Attorney-Gen. v. Oiroux, liii., 172. See Ceown Lands. LEGISLATION. 1. Constitutional law — Sunday observance — Legislative jurisdiction.] — Legislation to prohibit on Sunday the performance of work and labour, transaction of business, engag- ing in sport for gain or keeping open places of entertainment is within the jurisdiction of the Parliament of Canada. Attorney-General for Ontario v. Hamilton Street Railway Co. ([1903] A. C. 524) foUowed. (Leave to ap- peal to Privy Council refused, 26th July, 1905). In re Legislation respecting Absten- tion from Labour on Sunday, xxxv., 581, 2. Constitutional law — Inter-provincial and international ferries — Establishment or creation of ferries — License — Franchise — Exclusive rights — Powers of Parliament — R. S. C. 0. 97—51 Vict. c. S3. (,D.)—Aots by Governor in Council.] — Chapter 97 R. S. C. "An Act respecting Ferries" as amended by 51 Vict. eh. 23, is intra vires of the Parlia- ment of Canada, — ^The Parliament of Can- ada has authority to, or to authorize the Governor-General in Council to, establish or create ferries between a province and any British or foreign country or between two provinces. — The Governor-General in Coun- cil, if authorized by Parliament, may confer, by license or otherwise, an exclusive right to any such ferry. In re International and In- ter-provincial Ferries, xxxvi., 206. 3. Legislative jurisdiction— -Constitutional law — Education — Companies — Private bills i — Questions referred for opinions — Construction of statute — B. N. A. Act, 1867, ss. 92, 93—38 Vict. o. 11, s. 53 (B.).]— The incorporation of a society as a company of teachers for the Dominion of Canada is ultra vires of the Parliament of Canada. — Per Ritchie, C.J. — It is doubtful whether the judges of the Supreme Court of Canada should express opinions as to the constitu- tional right of Parliament to pass a private bai, in virtue of the provisions of section 53 of the Supreme and Exchequer Courts Act, 38 Vict. ch. 11 (D.).— NoTE.^Cf. Exp. Renaud et al. (14 N. B. Rep. 273; 3 Rev. Crit. 132) ; Doutre on the Constitution of Canada, pp. 325-329. Also R. S. C. (1906) ch. 139, sec. 61. In re "The Brothers of the Christian Schools in Canada," Cout. Cas. 1. 4. Constitutional law — Legislative jurisdic- tion — Incorporation of trading companies — Foreign corporations — Judicial opinions on references — Private rights — 45 Vict. c. 119 (£>.).'] — It is inexpedient that opinions should he given upon matters referred for ex- amination and report under the provisions of the Supreme and Exchequer Courts Act, where the questions may affect private rights that may come before the court judi- cially, and which ought not to be passed upon without a trial. — ^The objects for which the company in question was incorporated, by the statute 45 Vict. ch. 119, are within the jurisdiction of the Canadian Parliament, and are out of the exclusive jurisdiction of provincial legislatures, and consequently such a company may be incorporated by Par- liament. Re Quebec Timber Co., Cout Cas. 43. 623 LEGISLATION. 624 5. Legislative jurisdiction — Constitutional law — Companies — Private lill — Property and civil rights — Construction of statute — B. N. A. Act, 1861, s. 92—45 Vict. c. 107.]— The objects of the Act to incorporate the "Can- ada Provident Association" (45 Vict. ch. 107 (D.)), for carrying on business as a mutual benefit society throughout the Do- minion of Canada do not fall within the class of subjects allotted to the provincial legislatures under section 92 of the "British North America Act, 1867."— Per Ritchie, C.J., and Fournier, J. — There may be a doubt as to whether so much of the first section of the Act as enables the company to hold and deal in real estate beyond what may be required for their own use and ac- commodation, or so much of the second section as enacts that certain funds shall be exempt from execution for the debt of any member of the 'association, could be intra vires of the Parliament of Canada. In re Canada Provident Association, C'out. Cas. 48. 6. Courts of general sessions of the peace — Criminal law — Jurisdiction of magistrate — Criminal Code, s. 185 — Constitutional law ■^Constitution of criminal courts, xxxiv., 621. See Crikinal Law. 7. Construction of statute — Appeal — Jurisdiction — "Torrens System" — Lq/id Titles Act — Registry laws — Confirmation of tax sale ■ — • Persona designata — Court of original jurisdiction — Interlocutory proceed- ing ■ — Constitutional law — Conflict of laws — Legislative jurisdiction — Retroactive effect of statute — Redemption of land sold for taxes — Vesting of title — Interest in lands — — Equitable estate, xxxv., 461. See Constitutional Law. 8. Constitutional law — Construction of statute— B. N. A. Act, 1867, s. 92, s.-s. 10 (c) — Legislative jurisdiction — Parliament of Canada — Local works and undertakings — Recital in preamble — Enacting clause — General advantage of Canada, etc. — Subject matter of legislation — Presumption as to legislation of Parliament being intra vires, xxxvi,, 596. See CoNSTiTtTTiONAi, Law. 9. Canadian waters — Three-mile-zone — Fishing by foreign vessels — Legislative juris- diction — Seizure on high seas — Pursuit be- yond territorial limit — International law — Constitutional law — Sea-coast fisheries — Construction of statute — B. N. A. Act, 1867, s. 91, s.-s. 12— R. S. C. c. 94, ss. 2, 3, 4, xxxvii., 385. See Constitutional Law. 10. Constitutional law — British North America Act, 1861 — Provincial legislative jurisdiction — "Alberta Act," 4 <^ 5 Edw. Til. c. S (D.)—Con. Ord. N. W. T. (1898) c. 52—6 Edw. VII. c. 28 (Alta.) —Medical profession — Practising without license — Criminal law — Practice — Special leave to appeal— R. 8. C. (1906) c. 139, a. 31 (c). xxxvlii., 620. See Appeal ; Constitutional Law. 11. Appeal — Stated case — Provincial legislation — Assessment — Municipal tax- Foreign company — "Doing business in Halifax," xxxix., 174. See Assessment and Taxes. 12. Mechanics' lien — Completion of con- tract — Time for filing claim — Construction of statute— R. S. M. (1902) c. 110, ss. 20, S6 — Right of appeal, xxxix., 258. See Lien. 13. Evidence — Provincial laws in Canada — - Judicial notice — Conflict of laws — Negli- gence — Common employment — Construc- tion of statute — "Longshoreman" — "Work- man," xxxix., 311. See Evidence. 14. Railways — Constitutional law — Legis- lative jurisdiction — Application of statute — "The Prairie Fires Ordinance" — Con. Ord. N. W. T. (1898) c. 81 c. 2—N. W. T. Ord. 1903, (1st sess.), c. 25 and c. SO, (2nd sess.)- — Works controlled by Parliament — Operation of Dominion railway, xxxix., 476. See Railways. 15. Municipal council — Illegal expenditure — Action by ratepayer — Intervention of Attorney-General — Validating Act — Right of action, xxxix., 657. See Municipal Cobporation. 16. Will — Powers of executors — Winding- up estate — Time limit— Legacy — Special legislation— Extension of time — 3 Edw. VII. c. 136 (Que.) — Construction of statute, xl., 489. See Will. 17. Constitutional law — Municipal taxa- tion — Official of Dominion Government — Taxation on income — B. N. A. Act, 1861, ss. 91, 92, xl., 597. See Constitutionai, Law. 18. Constitutional law — Penitentiaries — Imprisonment of criminals — Expense of main- tenance . — B. N. A. Act, 1867 — Legislative jurisdiction of Parliament — Provincial legis- lation — Practice on references by Governor- General in Council, Cout. Cas. 24. See Constitutional Law. 19. Habeas corpus — Criminal law — Jiirit- diction of judge of Supreme Court of Canada — Issue of writ out of jurisdiction of provin- cial courts — Concurrent jurisdiction — R. S. C. (1886) c. 135, 32 — Construction of stat- ute — Constitutional law — Powers of Parlia- ment — "Inland Revenue Act" — "Selling and delivering a still and worm" — Cumula- tive charge — Summary conviction — Adjourn- ment — Conviction in absence of accused, Cout. Cas. 110. See Habeas Corpus. 20. Title to land — Railway aid — Land grant — Crown patents — Dominion Lands Regulations — Reservation of minerals — Con- struction of statute — 53 Vict. c. 4 (-D.) — R. S. C. (1886) 0. 54 — Free grants— Parlia- mentary contract, Cout Cas. 271. See Title to Land. 625 LIBEL. 626 21. Municipal corporation — Aid to civil power — Pay of militia — Legislative juris- diction — Civil rights and obligations — Gon- stitutional law, Cout. Cas. 343. See Constitutional Law. See Statute. 22. Construction of statute — "Alberta Local Improvement Act" — Assessment and taxation — Constitutional law — Railway aid — Land subsidy — Crown lands — Interests of private owner, xlv., 170. See Statute. 23. Constitutional lavi— Construction of statute — Legislative jurisdiction — "Direct taxation within the province" — Succession duty — Extra-territorial movables — Decedent domiciled within province, xlv., 469. See Constitutional Law. 24. See Constitutional Law. 25. Sea-coast and inland fisheries— Cana- dian waters — 7.'idal waters — Navigable waters — Open sea — B.C. "Railway Belt" — Foreshores — Ferw natures — Legislative jur- isdiction — Construction of statute, xlvii., 493. See FiSHEEiES. 26. Constitutional law — Provincial tram- way — Jurisdiction of Board of Railway Commissioners. — Highways — Overhead crossings — Apportionment of cost — Legis- lative jurisdiction — Ancillary powers — Con- struction of statute — "Railway Act," R. 8. C, 1906, ss. 8, 59, 237, 238—(B.C.)8 & 9 Edw. VII., c. 32— "B. N. A. Act, 1867," 8. 92, item 10. B. C. Electric R. R. Go. v. y. y. & E. R. R. & Nav. Co., etc., xlviii., 98. See Railways. 27. Constitutional law — Criminal law — Legislation respecting orientals — Chinese places of business — Employment of white females — Statute — 2 Geo. V., c. 17 (Sask.) —"B. N. A. Act, 1867," ss. 91, 92— Local and private matters — Property and civil rights — Naturalized British subject — Con- viction under provincial statute, xlix., 440. See Constitutional Law. 28. Municipal by-law — Exemption from taxation — Validating legislation — School rates — "Public School Act," 55 V. c. 60, s. i (Ont.) — Special by-law. Can. Niagara Power Co. v. Township of Stamford, 1., 168. See Assessment and Taxes. 29. EdMcation — School boards — ment and taxes — Taxes payable by incor- porated companies — Apportionment — Shares for public and separate school pur- poses — Notice — Construction of statute — Legislative jurisdiction — "B. N. A. Act," 1887, s. 92— "Saskatchewan Act," 4 £ 5 Edw. VII. c. 42, s. 17— "School Assess- ment Act," R. 8. Sask., 1909, c. 101, ss. 92, 9Sa. Regina Public School Dist. v. Orattan Separate School Dist., 1., 689. See Education. 30. Company — Dominion corporation — Provincial registration — Juristic disability — Right of action — Contract — Carrying on business within province — Legislative juris- diction— R. 8. Sask. 1909, c. 73, ss. 3, 10— Non-compliance with S. C. Rules — Costs. Linde Refrig. Go. v. Sask. Creamery, li,, 40O. See Company. 31. Assessment and taxation — Interest in land — Recitals in agreement — Validation by statute — Legislative declarations — Construc- tion of statute. Re Heinze, Fleitman v. The King, lii., 15. See Assessment and Taxes. LEGISLATURE. Constitutional law — Legislative Assembly — Powers of Speaker — Precincts of Souse — Expulsion.'] — The public have access to the Legislative Chamber and precincts of the House of Assembly as a matter of privilege only, under license, either tacit or express, which can be revoked whenever necessary in the interest of order and decorum. — The power of the Speaker and officers of the House to preserve order may be exercised during the intervals of adjournment between sittings as well as when the House is in session. — ^A staircase leading from the street entrance up to the corridor of the House is a part of the precincts of th« House and a member of the public who conducts himself thereon so as to interfere with the discharge by members of their public duties may law- fully be removed. — Judgment of the Su- preme Court of Nova Scotia (36 N. S- Rep. 211) reversed and a new trial ordered. Payson v. Hubert, xxxiv., 400. LESSOR AND LESSEE. Covenant for renewal of lease — Option of lessor — Second term — Possession by lessee after expiration of term — Construction of deed — Specific performance. Cam. Cas. 486. See Lease. And see Landlord and Tenant. LETTERS PATENT. Crown lands — Colonisation — Location ticket — Transfer by locatee — Sale — Issue of letters patent — Title to land — Registry laws— Notice— Arts. H87, U88, ^082, 2085, 2098 G. G. Howard v. Stewart, 1., 311. , See Crown Lands. LIBEL. 1. Privileged publications — Reports of judicial proceedings — Public policy— Plead- ings filed in civil actions — Proceedings not in open court.'] — The publication of the state- ments contauied in a pleading filed in the course of a civil action, merely because such statements form part of such a pleading, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings. — 627 LICEXSE. 628 The judgment appealed from (Q. R. 17 K. B. 309), reversing the judgment of the Su- perior Court (Q. R. 31 S. C. 338), was affirmed, Girouard. J., dissenting. Oazette Printing Co. v. Shallow, xli., 339. 2. Election contest — Withdrawal of candi- date — Allegation of improper motives — Trial of action — Verdict for defendant — New trial.] — K. was a member of the House of Commons prior to the election in 1908 and in August of that year a letter was pub- lished in the Sydney Post which contained the following, whicb referred to bim : — "The Doctor had a great deal to say of the elections in 1904. Well, I have some recollections of that contest myself, and I ask the Doctor : Why did you at that time withdraw your name from the Liberal con- vention? The majority of the delegates came there determined to see you nominated? Why did you not accede to their request? Doctor Kendall, what was your price? Did you get it? Take the good Liberals of this county into your confidence and tell them what happened in those two awful hours in a certain room in the Sydney Hotel that day? — "The proceedings of the convention were held up for no reason that the delegates saw, but for reasons which are very well known to you and three or four others whom I might mention. One speaker after another killed time at the Alexandria Hall while you were in dread conflict with the machine. Finally the consideration was fixed and you took off your coat and shouted for Johnston. What was that considera- tion?" — On the trial of an action by K. against the proprietors of the Post the jury gave a verdict for the defendants. — Held, Davies and Duff, JJ., dissenting, that the publication could only be construed as charg- ing K. with having withdrawn his name from the convention for personal profit, and was libellous. The verdict was therefore properly set aside by the court below and a new trial ordered, Sydney Post Publish- ing Co. V. Kendall, xliii., 461. 3. Business reputation — Action hy incor- porated company — Truth of facts ' alleged — Fair comment-— Justification — Public inter- est — Qualified privilege — Charge to jury — Misdirection — Misleading statements — Prac- tice — Evidence of special damage — Uew trial.']- — There being a dispute between the parties as to the ownership of certain lands, the plaintiffs, a commercial corporation, ob- tained special legislation vesting the lands in' question in the company. On becoming aware of this legislation, the defendant pub- lished letters in several newspapers accus- ing the company of obtaining it by political influence and preventing him vindicating his title in the courts. In an action to recover damages for libel, the trial judge told the jury that the defendant's defence of justi- fication would be estaiblished if they were satisfied that, although in fact untrue, the defamatory statements had been made in honest belief of their truth, and that, if the publications were an honest comment on the facts as stated, that, in itself, would be sufficient to establish the defence of fair comment. On the findings of the jury, judgment was entered for the defendant, but this judgment was set aside, on the ground of misdirection, by the judgment appealed from and a new trial ordered. — Held, per curiam, that where a libel conveys imputa- tions calculated to injure a trading corpora- tion in respect of its business the corpora- tion can maintain an action for damages. — Per Duff, J. — ^The publication complained of was capable of being read as charging the company with having used political influence for the purpose of procuring legislation giv- ing it possession of property in derogation of what, to its knowledge, were the defend- ant's rights, and this was an imputation calculated to injure the commercial corpora- tion in its business. — Held, per Idington, Duff, Anglin and Brodeur, JJ., Davies, J., dissenting. — That the directions by the trial judge as to the defences of justification and fair comment were erroneous and misleading. — Per Davies, J., dissenting. — ^Taken as a whole, the charge of the trial judge was clear and explicit and placed the material issues fairly before the jury, and, conse- quently, the judgment entered at the trial on the findings of the jury ought not to be disturbed. — Per Anglin, J., dissenting. — That, as a judge could not properly rule or a jury reasonably find that the defendant's letters were calculated to injure the property of the plaintiffs or their business reputa- tion, as a commercial corporation, they could not recover without proof of special damage. — Judgment appealed from (Q. R. 22 K. B. 393) affirmed, Davies and Anglin, JJ., dissenting. Price v. Chicoutimi Pulp Co., li., 179. 4. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — Evidence — Presumption of malice — Right of action, xxxix., 340. See Slander of Title. 5. Evidence — Privilege — Notary — Jury trial — Practice — Charge to jury — Objections after verdict — New trial — Mis- direction — Discretion. Barthe v. Huard, xlii., 406. See Practice. LICENSE. 1. Constitutional law — Inter-provincial and international ferries — Establishment or creation of ferries — Franchise — Edchisive rights '■ — Powers of Parliament — Orders in Council — Dominion Acts in relation of fer- ries, xxxvi., 206. See Ferries. 2. Patent law — Canadian Patent Act — R. S. C. (1906) c. 69. s. S8 — Manufacture- Sale — Lease or license, xxxix., 499. See Patent of Invention. 3. Title to land — Room in building — Ad- verse possession — Statute of Limitations — Incidental rights — Implied grant — License or easement, xl., 313. See Title to Land. 4. Crown lands — Holders of location ticket — ■ Prior right to mining rights — Privilege reserved to "proprietor of the soiV — Con- G29 LIEN. 630 struction of statute — R. 8. Q., (1888), s>. 1269, lUO, mi; 55 d 56 Vict. e. 20 (Que.), xl., 647. Bee Ckown Lands. And see Landlobd and Tenant; Lease. 5. Liquor laws — "Liquor License Ordin- ance," ss. 37, 57 — Cancellation of license — Jurisdiction of judge — ^7 Edio. VII., c. 9, s. U (Alta.), xliv., 321. See LiQuoB Laws. 6. See TiMBEE License, xlvi., 45. 7. Constitutional law — Incorporation of companies — "Provincial objects'' — Limita- tion — Doing business beyond the province — Insurance company — "Insurance Act, 1910," 9 a 10 Edw. VII., e. 32, s. 3, a.-s. 3— En- largement of company's powers — Federal company — Provincial license — Trading companies, xlviii., 331. See Constitutional Law. 8. Constitutional law — Insurance — For- eign company doing business in Canada — Dommion license — 9 d 10 Edw. VII., c 32, ss. 4, 70, xlviii., 260. See CONSTITTJTIONAL LAW. 9. License to cut timber — Indian lands — B. 8. C. 1906, u. 43, ss. 43, 54— License for twelve months — Regulations — Renewal of license. Booth v. The King, li., 20. See Indian Lands. 10. License to cut timber — R. 8. C. [1S86] c. 43, ss. 54 and 55 — License for twelve months — Regulations — Renewal of license, !i., 20. See Cbown. LIEN. 1. Mechanics' Tien — Machiney furnished —R. S. N. 8. (1900) c. ni, ss. 6 and 8— Contract price.] — Under the ilechanics' Lien Act of Nova Scotia, R. S. N. S. (1900) eb. 171, a lien for machinery for a mill does not attach until it is delivered and if the contractor for building the mill has then been fully paid there is nothing upon which the lien can operate, as by sec. 6 of the Act the owner cannot be liable for a sum greater than that due to the contractor. — B., holder of more than half the stock of a pulp com- pany, for which he had paid by cheque, and also a director, offered to sell to the com- pany land, build a mill and furnish working capital on receip.t of all the bond issue and cash on hand. The offer was accepted and all the stock, issued as fully paid up, was deposited with a trust company and the cash, his own cheque and the price of five shares, given to B. The stock was sold and, from the proceeds, the land was paid for, the working capital promised given to the company and the balance paid to B. from' time to time, as the mill was con- structed. _ The machinery was supplied by an American company but when it was de- livered all the money had been paid out as above. — Held, affirming the judgment ap- pealed from (86 N. S. Rep. 348), that as all the money had been paid before delivery the company was not liable under the Me- chanics' Lien Act to pay for the machinery. — Held, also, that sec. 8 of the Act which requires the owner to retain 15 per cent, of the contract price until the work is com- pleted did not apply as no price for building the mill was specified but the price was as- sociated with other considerations from which it could not be separated. S. Morgan Smith Co. V. Sissiboo Pulp and Paper Co., XXXV., 93. 2. Mechanics' lien — Completion of con- tract — Time for filing claim — Construction of statute— R. 8. M. 1902, c. 110, ss. 20 and 36 — Right of appeal.] — ^The time limited for the registration of claims for liens by sec. 20 of "The Mechanics' and Wage Earners' Lien Act," R. S. M. 1902, ch. 110, does not com- mence to run until liere has been such per- formance of the contract as would entitle the contractor to maintain an action for the whole amount due thereunder. — The judg- ment appealed from (16 Man. R. 366) was reversed. Davies and Maclennan, JJ., dis- sented on the ground that the evidence was too unsatisfactory to justify an extension of the time. — ^The court refused to quash the appeal on the ground that the right of ap- peal had been taken away by sec. 36 of the statute above referred to. (Appeal to Privy Council dismissed. ( [1908] A. C. 504) . Day V. Crown Orain Co., xxxix., 258. 3. Contract — Sale of machinery — Agre^i- ment for lien — Delivery.] — ■ The company sold R. an entire outfit of second-hand threshing machinery, for $1,400, taking from him three so-called promissory notes for the entire price. Two days before giving the notes, R. had signed an agreement setting out the bargain in which the following pro- visions appeared — "And for the purpose of further securing payment of the price of the said machinery and interest . . the purchaser agrees to deliver to the vendor, at the time of the delivery of the said machinery as herein provided or upon de- mand, a mortgage on the said lauds (i.e., lands described at the foot of the agree- ment) , in the statutory form, containing also the special covenants and provisions in the mortgages usually taken by the vendors. And the purchaser hereby further agrees with the said vendors that the vendors shall have a charge and a specific lien for the amount of the purchase money and interest, or the said amount of the purchase price, less the amount realized, etc., should the vendors take and re-sell the said machinery . . . and any other land the purchaser now owns or shall hereafter own or be in- terested in, until the said purchase money and all costs, charges, damages and expenses, and any and all notes or renewals thereof, shall have been fully paid, and the said lands are hereby charged with the payment of the said purchase money, obligations, notes and all renewals thereof, and interest and all costs, charges, damages and expenses as herein provided, and, for the purpose of securing the same, the purchaser liereby grants to the vendors the said lands . . . And. on deflault, all moneys hereby secured shall at once become due, and all powftr.s and other remedies hereby given shall bu tnforce- 631 LIEN. 632 able.'' In an action to recover the amount of the notes past due and to have a decree for a lien and charge upon the lands thcio- for under the agreement : — Held, reversing the judgment appealed from, that the right of the company to enforce the lien depended upon the interpretation of the whole con- tract ; that the provision as to the lien only became operative in the case of a complete delivery pursuant to the contract, and that the alternative words "or upon demand" . must be taken as meaning upon a demand made after such complete delivery. Rustin V. Fairchild Go., xxxix., 274. 4. lAguidation of insolvent corporation — Distribution and collocation ■ — Privileged claim — Expenses for preservation of estate — Fire insurance premiums — Practice — Eis parte inscription — Notice — Arts. STl, 37.S, 1,19, lOJfS-1046, ISOl, 1994, 1996, 2001, 2009 C. C] — M. acquired the factory and plant of an insolvent company which had been soli) under execution by the sheriff and, pending litigation during the winding-up of the com- pany, operated and maintained the factory as a going concern. The sheriff's sale was set aside and M. then abandoned the pro- perty to the curator of the estate, and SleA a claim, as a privileged creditor, for neces- sary and useful expenses incurred by him in preserving the property for the general benefit of the mass of the creditors, iiiclud- ing therein charges for moneys paid as pre- miums on policies of fire insurance effected in his own name during the time he had held possession. — Held, that, in the absence of evidence to shew that such insurances had been so effected otherwise than for his own exclusive interest, he coulu not be collocated by special privilege, on the distribution of the proceeds of the estate, for the amount of the premiums. McDbugall v. Banque d'Hochelaga, xxxis., 318. And see Company. 5. Sale of railway ties — Delivery — Bank Act lien — Trade m,arks — Timier marks.^ — The action was for the price of railway ties sold to the company and the question on the appeal was as to 20,000 of these ties claimed by T. & Co., as purchasers from the Union Bank, which claimed them under a Bank Act lien for advances to G., by whom they had been manufactured. The validity of the lien was contested for want of sufiicient descrip- tion as required in the Bank Act, and ques- tions arose on the appeal as to whether tim- ber brands are property marks or merely trade marks, and if they make primd facie proof of ownership under the Timber Marks' Act passed in 1870. — ■ Both courts below decided against the appellant on the ground of the insufficiency of the evidence, and a further appeal was dismissed for the reasons given in the Superior Court. Magann v. Grand Trunk Ry. Co., Oout. Gas. 266. 6. Privileges and hypothecs — Tramway^ Operation on highway — Title to land — Im- mobilization iy destination — Sale of tram- way iy sheriff as "going concern" — Unpaid vendor — Lien on price of ca/rs — Pledge — ■ Contract — Construction of statute, S Edw. VII. ch. 91 (Que.)- — Priority of claim — -Col- location and distribution — Arts. S79, 2000 C. r.~Art. 752 Mun. Code.']— A company operating an electric tramway, by pernus- sion of the municipal corporation, on rails laid on public streets vested in the munici- pality, to secure tne principal and interest of an issue of its debenture-bonds hypothe- cated its real property, tramway, cars, etc., used in connection therewith, to trustee? for the debenture-holders, and transferred the movable property of the company and its present and future revenues to the trustees. By a provincial statute, 3 Edw. VII. ch. 9-1, sec. 1 (Que.), the deed was validated and ratified. On the sale, in execution, of the tramway, as a going concern: — Held, that whether, at the time of such sale, the cars in question were movable or immovable in character the effect of the deed and ratifying statute was to subordinate the rights of other creditors to those of the trustees, and, consequently, that unpaid vendors thereof were not entitled, under article 2000 of the Civil Code of Lower Canada, to priority of payment by privilege upon the distribution of the moneys realized on the sale in execu- tion. — Per Gironard, J. — ^Duff, J., contra. — After the cars in question had been deliv- ered to the tramway company and used by it in the operation of their tramway, they became immovable by destination. — In the result, the judgment appealed from (Q. R. 18 K. B. 82) was affirmed. Ahearn & Soper V. New York Vrust Co., xlii., 267. 7. Mechanics' lien — Construction of stat- ute — Alberta Mechanics' Lien Act — 6 Edw. VII. c. 21, ss. 4 and 11 — Building erected by lessee — Liability of "owner."] — Section 4 of the "Alberta Mechanics' Lien Act" (6 Edw. VII. ch. 21) gives to any contractor or niaterialman furnishing labour or ma- terials for a building at the request of the owner of the land a lien on such land for the value of such labour or materials. — Sub- section 4 of section 2 provides that the term 'owner" shall extend to and include a person having any estate or interest "in the land upon or in respect of which the work is done or materials are placed or furnished at whose request and upon whose credit or on whose behalf or with whose privity or con- sent or for whose direct benefit any such work is done, etc." By section 11 "every building . . . mentioned in the fourti section of this Act, constructed upon any lands with the knowledge of the owner or of his authorized agent . . shall be held to have been constructed at the request of such owner," unless the latter gives no- tice within three days after acquiring such knowledge that he will not be responsible. — The lessee of laud, as permitted by his lease, had buildings thereon pulled down and pro- ceeded to erect others in their place, but was obliged to abandon the work before it was finished. The owner of the land was aware of the work being done but gave no notice disclaiming responsibility therefor. Mechan- ics' liens having been filed under the Act : — Held, that the interest of the owner in the land was subject to such liens. — Judgment appealed from, varying that at the trial (2 Alta. L. R. 109) in favour of the lienhold- ers, aflirmed. Limoges v. Scratch, xliv., 86. 8. Timber license — Crown lands in Brit- ish Columbia — Real estate — Personalty — Contract — Sale — Exchange — Considera- 633 LIEN. 6;u Hon — Payment m joint stock shares — Yen- dor's lien — Evidence — Onus of proof — Plead- ing and practice^ — A sale of rights under licenses to cut timber on provincial Crown lands in British Columbia is a contract for the sale of interests in real estate, and the timber'berths are subject to a vendor's lien for the unpaid purchase money. — ^The doc- trine of vendor's lien for unpaid purchase- money is applicable to every sale of per- sonal property over which a court of equity assumes jurisdiction. In re Stucley { (1906) 1 Ch. 67) followed. — ^In order to protect him- self against the enforcement of a vendor's lien, a defendant relying on the equitable defence of purchase for value without no- tice is bound to allege in his pleadings and to prove that he became purchaser of the property in question for valuable considera- tion and without notice of the lien. In re Nisbett and Potts' Contract ( [1905] 1 Ch. 391; [1906] 1 Ch. 386), followed. White- horn Brothers v. Davison ([1911] 1 K. B. 463), distinguished. — (Leave to appeal to the Privy Council was refused on the 29th of July, 1911.) Laidlaw v. VaughanrRhys, xliv., 458. 9. Mechanic's lien — Loam, company — Agreement for sale — Advances for building — "Owner" — Request — Privity and consent —Mortgagee— R. S. 0., U91Ii'] c. l/,0, ss. 2 (I), 8 (S) and 14 (2)— "Mechanics' Lien Act."] — ^The owners of four lots of land in Toronto executed an agreement to sell them to one I., who was to make a cash deposit and undertake to build four houses on the lots, the vendors to advance $6,400 for build- ing purposes. On completion of the houses and on receipt of the balance of price and amount of advances, the vendors to execute a deed of the lots. I. gave contracts for the building which was partly completed, and $3,400 was advanced by the vendors when I. became insolvent and the vendors, under the terms of their agreement, gave notice of forfeiture and took possession of the pro- perty. Prior to this liens had b.een filed for labour and materials supplied and the lien- holders brought action for enforcement thereof against the vendors. — Held, affirm- ing the judgment of the Appellate Division (35 Ont. L. R. 542), Davies and Brodeur, JJ., dissenting, that the vendors were not owners of the property according to the de- finition of the term "owner" in section 2 (c) of the "Mechanics' Lien Act" and, therefore, were not liable to pay for the labour and materials supplied for the build- ing of the houses by I. — Per Anglin, J. — ^To make the vendors "owners" because the work was done with their privity and con- sent a direct dealing between them and the materialmen was requisite and of this there was no evidence. — By section 14 (2) of said Act, the vendors, under the agreement for sale, became mortgagees of the land sold with their rights as such postponed to those of the lien-holder in respect to any "in- creased value" given to the land by erection of the houses thereon. — Held, that though they had refused it at a former stage of the proceedings, the lien-holders should, if they wish, have a reference to permit of revision of their claims on the basis of the vendors being mortgagees, any amount found due to them on such reference to be set-off against the costs payable by them in the Appellate Division and on this appeal. Marshall Brick Co. V. York Farmers' Colonization Co., liv., 569. 10. Equitable mortgage — Mines and miner- als — Lease of mining lands — 'Sheriff's sale — Purchase by judgment creditor of mortga- gee — Registry laws — Priority — Actual no- tice — Lien for Crown dues paid as rent — G. S. N. B. (1903) c. SO, s. 139, xxxvii.,517. See Mines and Mining. 11. Mortgage — Money advanced to con- struct buildings — Lien for materials sup- plied — Payment to contractor — Transactions in fraud of mortgagees rights — Redemption — Costs, xxxviii., 557. See Mortgage. . 12. Shipping — Material men — Supplies fur- nished for "last voyage" — Privilege of der- nier equipeur — Round voyage — Charter-party — Personal debts of hirers — Seizure of ship — Arts. 2283, 2391 C. C.—Art. 931 0. P. Q.— Construction of statute — Ordonnances dela Marine, 1681, xh, 45. See Ships and Shipping. 13. Sale of goods — Delivery — Lien of unpaid vendor — Stoppage in transits — Goods not separated from larger bulk — Es- toppel, Cam. Cas. 511. See Saie. 14. See Peivbleges and Hypothecs, xli., 105. 15. Title to lands — Homestead and pre- emption rights — Unpatented Dominion lands — "Transfer" — Incumbrance — Charge to se- cure debts — 'Sanction of minister — Absolute nullity — Construction of statute — Dominion Lands Act. American Abell Engine Co. v. McMillan, xlii., 377. See Title to Land. 16. Privileges amd hypothecs — Tramway — Operation of highway — Title to land — Immiobilization by destination — Sale of tramway by sheriff as a "going concern" — Unpaid vendor — Lien on price of cars — Pledge — Contract — Construction of statute, S Edw. VII. c. 91 (Que.) ^Priority of claim — Collocation and distribution — Arts. S79, 2000 C. C.—Art. 752 Mun. Code. Ahearn t£- Soper v. N. Y. Trust, xlii., 267. See PHivrLEGEs and Htpothecs. 17. 6 Edw. VII. c. 21 (Alta.)— Contract — Overpayment to contractor — Liability of owner of land — Attaching of lien — Negotia- tion of note — 'Claim of lien-holder— Waiver — Estoppel. Travis v. Breckenridge-Lund Lumber and Coal Co., xliii., 59. 18. Oift — Money received — Pleading — Evidence — Presumption — Proceeds of prostitution — Conversion. Johnston v. De- saulniers, xlvi., 620. 19. Construction of statute — "Creditors' Relief Act," 9 Edw. VII. c. 48, s. 6, s.-s. 4 (Ont.) — Contesting creditor's lien — "As- signments and Preferences Act," 10 Edw. VII. c. 64, s. 14 (Ont.), xlvi., 119. See Statute. 635 LIMITATIONS OP ACTIONS. 636 20. Appeal — Case originating in Supe- rior Court — "Supreme Court Act," a. 37 ( 6 ) — Concurren>t jurisdiction — "Mechanics' Lien Act" (B.C.) — A.ction to enforce lien. Champion v. World Bldg. Co., 1., 382. See Appeal. 21. Builders and contractors — Materials supplied— Order for money payable under contract — Evidence — Estoppel — Enforcing equitable assignment — Practice. Ritchie v. Jeffrey, lii., 243. See Builders and Contbactoks. LIGHT. Title to land — ■Servitude — Construction of deed — Reservations — "Representatives" -r- Owners par indivis — Common lanes — Right of passage — ■ Private wall — Windows and openings on line of lane — Arts. 533-53S C. C, xxxvi., 618. See Servitude. LIMITATIONS OF ACTIONS. 1. Fire insurance — Contract of re-insur- ance — Trade custom — Conditions — "Rider" to policy — Limitation of actions — Com- mencement of prescription — Art. S236 C. CI — ^A contract of re-insurance consisted of a blank form of policy of fire insurance in ordinary use with a "rider" attached setting forth the conditions of re-insurance. The pol- icy contained a clause providing that no ac- tion should be maintainable thereon unless commenced within twelve months next after the fire. The "rider" provided that the re-in- surance should be subject to the same risks, conditions, valuations, privileges, mode of settlement, etc., as the original policy, and that loss, if any, should be payable ten days after presentation of proofs of payment by the company so re-iasured. — Beld, revers- ing the judgment appealed from, Girouard and Nesbitt, JJ., dissenting, that there was no incongruity between the limitation of twelve months in the form of the main policy and the condition in the rider agreement as to claims for re-insurance and, consequently, that the action for recovery of the amount of the re-insurance was prescribed by the conventional limitation of twelve months from the date of the fire occasioning the loss. (Reversed by Privy Council ([1907] A. C. 59). Victoria-Montreal Fire Ins. Co. V. Home Ins. Co. of New York, xxxv., 208. 2. Municipal corporation — Assessment and taxes — Contestation of roll — Interruption of prescription — Suspensive condition — Con- struction, of statute — 52 Vict. o. 79 (Q.) — 62 Vict. c. 58, s. 408 (Q.) — Collection of taxes— Art. 2236 C. C] — The prescription of three years in respect of taxes provided by the Montreal City Charter, 52 Vict. ch. 79 (Q.), runs from the date of the deposit of the assessment roll, as finally revised, in the treasurer's oflBce, when the taxes become due and exigible, and the prescription is not suspended or interrupted by a contestation of the assessment roll, even although the contestation may have been filed by the pro- prietor of the lands assessed. Judgment appealed from aflirmed, Girouard and Nes- bitt, JJ., dissenting. (Appeal to Privy CouncU dismissed, ([1906] A. C. 241.) City of Montreal v. Cantin, xxxv., 22'3. 3. Debtor and creditor ■ — Assignment of debt — 'Sheriff's sale — Equitable assignment — Statute of Limitations — Payment — -Ratifi- cation — Principal and agent.'] — In Nova Scotia book debts cannot be sold under ex- ecution and the act of the judgment debtor in allowing such sale does not constitute an equitable assignment of such debts to the purchaser. — The purchaser received pay- ment on account of a debt so sold which, in a subsequent action by the creditor and others, was relied on to prevent the opera- tion of the Statute of Limitations. — Seld, that though the creditor might be unable to deny the validity of the payment he could not adopt it so as to obtain a right of action thereon and the payment having been made to a third party who was not his agent did not interrupt the prescription. Keighley, Maxstead & Co. v. Durant ([1901] A. 0. 240) followed. Moore v. Roper, xxxv., 533. 4. Title to land — Conveyance of fee- — Re- servation of life estate — Possession — Eject- ment — Limitation of action.'] — ^Where it ap- peared that life tenants went into possession under the person to whom the lands had been conveyed in fee, the title to the latter could not be disputed and the statute would not begin to run until the life estate termin- ated. Dods V. McDonald, xxxvi., 231. And see Title to Land. 5. Negligent operation of machinery — Tt- bration, sm,oke, noise, etc. — 'Series of torts — Continuing nuisance— Limitations of actions — Prescription of actions in tort — -Arts. 877, 379, S80 and 2261 C. (7.]— Where injuries caused by the operation of machinery have resulted from the unskilful or negligent ex- ercise of powers conferred by public author- ity and the nuisance thereby created gives rise to a continuous series of torts, the ac- tion accruing in consequence falls within the provisions of art. 2261 of the Civil Code of Lower Canada and is prescribed by the lapse of two years from the date of the occur- rence of each successive tort. Wordsworth V. Barley (1 B. & Ad. 391) ; Lord OaUey V. Kensington Canal Co. (5 B. & Ad. 138) ; and Whitehouse v. Fellowes (10 C. B. N. S. 765) referred to. Montreal Street Railway Co. V. Boudreau, xxxvi., 329. And see Nuisance. 6. Operation of statute — lynregistered deed — Subsequent registered mortgage — Pos- session — Right of entry.] — ^R. T., in 1891, being about to marry W. T., and wishing to convey to him an interest in her land, ex- ecuted a deed of the same to a solicitor, who then conveyed it to her and W. T. in fee. The solicitor registered the deed to himself but not the other, forging on the same a certincaite of registry, and he, in 1895, mort- gaged the land and the mortgage was duly registered. R. T. and W. T. were, in pos- session of the land all the time from 1891, and only discovered the fraud practised against them in 1902. In 1903 the mort- G37 LIMITATIONS OF ACTIONS. 638 gagee brought aotion to enforce Hs mort- gage. — Held, affirming the judgment of the Court of Appeal (9 Ont. L. R. 105), Davies and Nesbitt, JJ., dissenting, that the legal title being in the solicitor from the time of the execution of the deed to him the Statute of Limitations began to run against him then and the right of action against the par- ties in possession was barred in 1901. (Re- versed by Privy Council [1908] A. C. 60.) McVUy V. n-anouth, xxxvi., 455. 7. Cause of action — Contract — Foreign judgment — Yukon Ordinance, c. 31 of 1890 — Statute of James — Statute of Anne — Lex fori — Lex loci contractus — Absence of debtor.'] — Under the provisions of the Yukon Ordinance, ch. 31 of 1890, the right to re- cover simple contract debts in the Territor- ial Court of Yukon Territory is absolutely barred after the expiration of six years from the date when the cause of action arose not- withstanding that the debtor had not been for that period resident within the jurisdic- tion of the court. Juagmeut appealed from reversed, Girouard and Davies, JJ., dissent- ing. Rutledge v. United States Savings and Loan Co., xxxvii., 546. 8. Title to land — Room in building — Ad- verse possession — Statute of Limitations — Incidental rights-^ImpUed grant — License or easement.'i — Possession of an upper room in a building supported entirely by portions of the story beneath may ripen into title thereto under the provisions of the Statute of Limitations. — I., one of several owners of land with a building thereon, sold his in- terest to a co-owner and afterwards occu- pied a room in said building as tenant for his business. The room was on the second story and inside the street door was a land- ing leading to a staircase by which it was reached. I. had the only key provided for this street door and always locked i| when leaving at night. He paid rent for tne room at first and then remained in possession without paying rent for 'twelve years. The annual tax bills for the whole premises were generally, during that period, left in the room he occupied and were sent by him to the managing owner who paid the amounts. In an action to restrain the owners from interfering with his possession of said room and its appurtenances : — Beld, reversing the judgment of the Court of Appeal (15 Ont. L. R. 286) , and restoring with a modifica- tion that of the trial judge (14 Ont. L. R. 17), Idington and Maclennan, JJ., dissent- ing, that I. had acquired a title under the Statute of Limitations to said room and to so_ much of the structure as rested on the soil to which he had acquired title. — Held, per Davies, J. He had also acquired a pro- prietary right to the staircase and the por- tions of the building supporting said room. —Per Fitzpatrick, O.J., and Duff, J — The Statute of Limitations does not as against the party dispossessed annex to a title ac quired by possession incidents resting on the implication of a grant. I. had, there- fore, acquired no rights in the supports. — Per Idington and Maclennan, JJ. — The use of the landing and staircase was, at most, an easement and must continue for twenty years to produce the statutory title, and to give title to the supports there would have to bo actual possession which was not the case here. Iredale v. London, xl., 31o. 9. Chose in action — Sufficiency of assign- ment — Notice — Statute of Limitations — Acknowledgment of debt — Interest.'] — Ac- tion brought by the plaintiff as assignee of one T. agaiiist the defendants, alleging in- debtedness of the defendants' testator to T. on the common counts and alleging an as- signment of the indebtedness from T. to the plaintiff and notice thereof to the defend- ants. The defendants denied the claim and alleged, first, that no sufficient notice under the statute was ever given of the assignment from T. to the plaintiff, and that the action was barred by the Statute of Limitations. — Eeld, affirming the judgment of the Supreme Court of Nova iScotia, that the notice of the assignment given was a sufficient compli- ance with the statute (R. S. N. S. 4th ser.), ch. 94, sec. 357), and that the letters writ- ten by the defendants' testator to the as- signor of the plaintiff were a clear acknow- ledgment of the debt and sufficient to take it out of the provisions of the Statute of Limi- tations. Grant v. Cameron (xviii., 716) ; Cam. Cas. 239. 10. Industrial improvements — • Raising height of dam — ■ Nuisance — Damages — Right of action — Prescription — Arts. 2242, 2261 C. G.] — Per Anglin, J.— An action, brought in 1908, for recovery of damages in respect of injuries occasioned by improve- ments executed in 1904, upon works con- structed many years before that time, is not subject to the prescription of thirty years ; nor can the prescription provided by article 12261 oS the Civil Code be applied where the action has been commenced within two years from the time the injuries complained of were sustained. Gale v. Bureau, xliy., 305. And see Rivebs and Steeams. 11. Possession by mortgagee — "Real Pro- perty Act,'- R. S. il. 1902, c. US. s. 75— "Real Property Limitation Act," R. S. M. 1902, c. 100, s. 20 — Construction of stat- ute.] — Per Davies, Duff and Brodeur, JJ., affirming the judgment appealed from (20 Man. R. 522). — The equitable rights of mortgagors in lands subject to the operation of the "Real Property Act," R. S. M. 1902, eh. 148, and of persons claiming through them, are protected by the provisions of the 75th section of that statute denying the acquisition of title adverse to or in deroga- tion of that of the registered owner of such lands by length of possession only ; the limitation provided by section 20 of the "Real Property Limitation Act," R. S. M. 1902, ch. 100, in favour of mortgagees, has no application to lands after they have been brought under the "Real Property Act." Smith V. National Trust Co., xlv., 618. And see Moetgage. 12. Negligence — Risk of employment — Dangerous works and materials — Warnings and instructions — Employers' liability — Damages — Personal injury — Limitation of action— "Railway Act," R. 8. C. 1906, c. 37, s. 306 — "Construction and operation of rail- vmy."] — The limitation of one year, in rer spect of actions to recover compensation for 639 LIMITATIONS OP ACTIONS. 640 injuries sustained by reason of the construc- tion or operation" of railways, provided by section 306 of the "Railway Act" (B. S. C. 1906, ch. 37), relates only to injuries sus- tained in the actual construction or opera- tion of a railway ; it does not apply to cases where injuries have been sustained by em- ployees engaged in works undertaken by a railway company for procuring or pre- paring materials which may be necessary for the construction of their railway. Can- adian Northern Rway. Go. v. Robinson ( (1911) A. C. 739) applied ; judgment ap- pealed from (21 Man. R. 121) affirmed. (Leave to appeal to Privy Council refused, 20ith March, 1912). Canadian Northern Rway. Go. v. Anderson, xlv., 355. And see Negligence. 13. Negligence — Railway — Prescription — Damage or injury "by reason of construc- tion" — Contractor — Transcontinental Rail- way Commissioners — "Railway Act," s. 306.} — ^Section 15 of the "National Transcontin- ental Railway Act" provides that "The Com- missioners shall have, in respect to the Eastern Division ... all the rights, powers, remedies and immunities conferred upon^ a railway company under the 'Railway Act.' " — Seld, Fitzpatrick, C.J., and Idington, J., dissenting, that the provision in sec. 306 of the "Railway Act" that "all actions or suits for indemnity for any 'damage or injury sustained by reason of the construction or operaition of the railway shall be commenced within one year, etc.," applies to such an action against the Transcontinental Railway Commissioners, and also against a contrac- tor for construction of any portion of the Eastern division. — Held, per Anglin, J., tbat it applies also to an action against a con- tractor for constructing a railway for a pri- vate railway company incorporated by Act of Parliament. West v. Corbett, xlvii., 596. 14. Limitations of actions — General sta- tutory provisions — Carriers — Private Act — B. G. Consolidated Railway Go's Act — Statute— R. S. B. C, 1911, c. 8S — Lord Campbell's Act^{B.C.) 59 V. c. 55, s. 60.} — By section 60 of the "'Consolidated Rail- way Company's Act" (B.C.), 59 Vict., ch. 55, actions for damage or injury sustained by reason of a tramway or railway, or the works or operations of the company, are subject to a limitation of six months. — Held, that the limitation thus provided for the pro- tection of a private corporation had not the effect of altering the general limitation of twelve months provided by the fifth sec- tion of the "Families Compensation Act," R. S. B. C, 1911, ch. 82. Green v. British Columbia Electric Rway. Co. (12 B.C. Rep. 199) ; Canadian Northern Rway. Co. v. Robinson (43 Can. S. C. R. 387) ; Zimmer V. Grand 'Trunk Rway. Co. (19 (Dnt. App. R. 693) ; Markey v. Tolworth Joint Isola- tion Hospital District ( (1900) 2 K. B. 454) , and 'Williams v. Mersey Dock and Harbour Board ((1905) 1 K. B. 804), referred to. —Per Duff, J.— Section 60 of the "Consoli- dated Railway Company's Act," (B.C.) 59 Vict. ch. 55, has no application to an action brought against the company for breach of duty as a carrier. Sayers v. British Colum- bia Electric Rway. Co. (12 B. C. Rep. 102) referred to. — [Note. — Cf. Gentile v. B. 0. Elec. Rway. Co., (18 B. C. Rep. 307) af- firmed by Privy (Douncil, 16th June, 1914.] British Columbia Electric Rway. Co. v. Turner, xlix., 470. And see Practice and Pkocedube. 15. Municipal corporation — Montreal city charter — Construction of statute — "Current year" — - Assessment and tames — Local im- provements — Special tax, xxxix., 151. See Municipal Coepobation. 16. Administration proceedings — Statute of Limitations — Champertous agreement — Practice, Cam Cas. 119. See Champeety.' 17. Doweress — Title to land — Prescription — Statute of Limitations — Heirs-at-law — Pa- rol evidence — Will — Beaid/aa/ry devise. Cam. Caa. 338. See Title to Land. Se& Peescbiption, xli., 264. 18. Connolly v. Grenier, xlii., 242. See Peescbiption. 19. Construction of statute — Limitations of actions — Contract for supply of electric light — Negligence — Injury to person not privy to contract — "Consolidated Railway Company's Act, 1896," 59 V. c. 55 (B.C.) ss. 29, 50, 60, xliii., 1. See Statute. 20. Suretyship — Simple contract — Dis- charge of one surety under seal — Confir- mation of original guarantee — Death of surety — Powers of executors — Continuance of guarantee. Union Bank of Can. v. Clark, xliii., 299. See SUEETTSHIP. 21. ^tion — Damages — Denial of traffic facilitlft — Injury by reason of operation of railway — "Railway Act," S Edw. VII. e. 58, s. 242 — Construction of statute, xliii., 387. See Action. 22. Sale of lands for tones — By-laws en- acted without jurisdiction — Sessions of coun- cil outside municipal boundaries — Statutory relief — Estoppel — Acquiescence — Laches — Construction of statute.} — Per Duff and Anglin, JJ., Brodeur, J., contra. — The pro- visions of section 126 (3) of the British Columbia "Municipal Act, 1892" (R. S. B. C, 1897, ch. 144, sec. 86 (2),) have no application to invalid by-laws enacted by municipal councils on occasions when they could not perform legislative functions. Anr derson v. Municipality of South Vancouver, xlv., 425. And see Municipal Cohpobation. 23. Trespass — Railways — Occupation of lands — Side-tracks — Continuous trespass — Damages— R. S. C, 1906, c. 37, s. S06. C. P. R. V. Carr, xlviil., 514. See Railways. See Statute. 24. Railways — Right of way — Clearance of combustible matter — Burriitig worn-out ties — Injury from spread of fife — "Operation 641 LIS PENDENS. 643 of the railway" — "Railway Act" (R. Sf. 0. [1906] c. 37, as. 297, 306), li., 338. See Railways. 25. Railways — Negligence — Gonstruc- tion of statute — "Railway Act," R. 8. 0., 1906, c. si, s. S06 — Constitutional law — "Civil rights" — Jurisdiction of Dominion Parliament — Provincial legislation — "Em- ployers' UaUlity Act," R.. S. M., 191S, c. ei — Paramount authority — "Operation of raiVway" — 'Conflict of laws, liv., 36. See RAiL\yATS. LIQUIDATION. "Winding-up Act" — Insolvent lank — Ap- pointment of liquidators — Appointing another hanh — Discretion of judge — Appeal, (xviii., 707) ; Cam. Cas. 209. See "Winding-tip Act." MQTIOB LAWS. 1. Municipal Act — Vote on Tjy-law — Local option — Division into wards — Single or mul- tiple voting — S Edw. VII. c. 19, s. 355.'] — Section 355 of the Ontario Municipal Act, 3 Ed-w. VII. ch. 19, providing that "when a municipality is divided into wards each ratepayer shall he so entitled to vote m each ward in which he has the qualification neces- sary to enable him to vote on the by-law," does not apply to the vote on a local option by-law required by sec. 141 of the Liquor License Act (K. S. O. [1897] ch. 245.) — Judgment of the Court of Appeal (13 Ont. L. R. 447) affirming that of the Divisional Court, (12 Ont. L. R. 488) affirmed. Sin- clair V. Town of Owen Sound, xxxix., 236. 2. "Liquor License Ordinance," ss. 37 and 57 — Cancellation of license — Jurisdiction of judge— y Edw. VII. c. 9, s. U (Alta.) .]— The provisions of section 57 of "The Liquor License Ordinance" (Con. Ord. 1898, ch. 89), conier upon a judge of the Supreme Court of Alberta power to direct 'he cancel- lation of liquor licenses which have been obtained in violation of sub-section 3, of section 37, of that ordinance as amended by section 14 of "The Liquor License Amendment Act, 1907," 7 Edw. VII. ch. 9, of the Province of Alberta. Finseth v. Ryley Hotel Co., xliv., 321. 3. Appeal — Jurisdiction — "Supreme Court Act," ss. 36, 37, i6 — Judge in Chambers — Originating petition — Arts. 71, 72, 875, S7S C. P. Q. — "Q«e6ec License Law," R. 8. Q., 1909, arts. 92^ et seq. — Property in license — Agreement — Ownership in persons other than holder — Invalidity of contract-^PulUc policy.] — ^A cause, matter or judicial _ pro- ceeding originating on petition to a judge in chambers, in virtue of articles 875 and 87C of the Quebec Code of Civil Procedure, is appealable to the Supreme Court of Can- ada where the subject of the controversy amounts to the sum oi value of two thousaiid dollars. — It is inconsistent with the policy of the "Quebec License Law" (R. S. O., 1909), that the ownership of a license t» sell intoxicating liquors should be vested in one person while the license is held in the name of another. An agreement having that effect is void inasmuch as it establishes con- ditions contrary to the policy of the statute. .ludgment appealed from (Q. R. 22 K. B. 58) , reversed, Brodeur, J., dissenting. Tur- geon v. St. Charles, xlviii., 473. 4. Sale of goods — Contract hy correspond- ence — Statute of Frauds — Delivery — Princi- pal and agent — Statutory prohibition — Illicit sale of intoxicating liquors — Knowledge of seller — Validity of contract, xxxvii., 55. See CONTBACT. 5. Canada Temperance Act — Conviction — "Criminal case" — R. S. C. (1886) c. 135, s. 82 — Habeas corpus — Penalty — "^of less than $50" — Conviction for $W0 — -Imposition of fine for first ofence — Powers of Supreme Court judge — Reference of application to full court, xxxviii., 394. , , See "Canada Temperance Act." A^'^D see Canada Temperance Act; Excise. 6. Appeal — Jurisdiction — Stated case — Final judgment — Origin in Superior Court, xli., 25. See Appbal. 7. Appeal — Jurisdiction — Special leave — "Judicial proceeding" — Discretionary order — Matter of public interest — Alberta "Liquor License Ordinance" — "Originating sum- mons." Finseth v. Ryley Hotel Co., xliii., 646. See Appeal. 8. Habeas corpus — "Supreme Court Act," s. 39c — Criminal charge— Prosecution under provincial Act — Application for writ — Judge's order, xlvii., 259. See Appeal. LIS PENDENS. 1. Constitutional law — Imperial Acts in force in Yukon Territory — Title to land — "Torrens System"-'— Transfer by registered owner — Fraud — Litigious rights — Notice of lis pendens — Irregular registration — Indorse- ments upon certificate of title — Construction of statute — Pleading — Objections taken on appeal — Yukon Territorial Court Rules — Yukon Ordinances, 1902, c. n — Rules 113, 115, in — Waiver — Estoppel, xxxvi., 251. See Registry Laws. 2. Placer mining — Disputed title — Tres- pass pending litigation — Colour of right — Invasion of claim — Adverse acts — Sinister intention — -Conversion — Blending materials — Accounts — Assessment of damages — Miti- gating circumstances — Compensation for necessary expenses — Estoppel ■ — Standing- by — Acquiescence, xxxviii., 516. See Mines and Mining. S.C.D. — ^21 643 LONGSHOEEMAN". 644 LITERARY PROPERTY. Contract — Literary work — Publisher and author — Ohligation to publish.'] — In 1901. M. & Co., publishers of Toronto, and L., an author in Ottawa, signed an agree- ment, by which L. undertook to write the life of the Count de Frontenac for a work entitled "Makers of Canada," in course of publication by M. & Co. ; the latter agreed to publish the work and pay L. $500 on publication and a like sum when the second edition was issued. This contract was car- ried out and the publishers then proposed that L. should write on the same terms, the life of Sir John A. Macdonald, for which that of William Lyon Mackenzie was afterwards substituted. L. prepared the latter work and forwarded the manuscript to the publishers, who, although they had paid him in full for it in advance, refused to publish it, as being unsuitable to be in- cluded in "The Makers of Canada." L. then tendered to M. & Co. the amount paid him and demanded a return of the manu- script, which was refused, M. & Co., claim- ing it as their property. In an action by L. for possession of his manuscript, — Held, aflSrming the judgment of the Court of Ap- peal (20 Ont. L. R. 594), Idington and Anglin, JJ., dissenting, that he was entitled to its return. — Held, per .Fitzpatrick, C.J., that the property in the manuscript (or what is termed literary property) has a spe- cial character, distinct from that of other articles of commerce ; that the contract be- tween the parties must be interpreted with regard to such special character of the sub- ject-matter ; that it implies an agreement to publish if accepted; and when rejected the author was entitled to treat the contract as rescinded and to a return of his property. — Held, per Davies and Duff, JJ., that there was an express contract for publication and an implied agreement that the manuscipt was to be returned if publication should become impracticable for such reasons as those given by the publishers. — Held, per Duff. J., that the publishers, until publica- tion, could be treated as having possession of the manuscript for that purpose and, that purpose failing, there was a resulting trust In favour of the author. Morang de Co. v. tie Sueur, xlv., 95. See COPTEIGHT. LITIGIOUS RIGHTS. 1 Parties interested in litigation — Partir> tioii -Champerty — Maintenance — Pacte de quotd litis — Illegal consideration — Spe- cific performance — Pleading.] — The defence of retrait de droits litigieux is an exception which can be set up only by the debtor of the litigious rig'M in question. Powell v. Watters (28 Can. S. C. R. 133) referred to. (Leave to appeal to Privy Ootmdl re- fused.) Meloche v. Diguire, xxxiv., 24. And see Champeett ; Title to Land. 2. Foreclosure of mortgage — Redemption — Assignment pending suit — 'Procedure in court ielow — Costs, xxxv., 181. See Peaotioe. 3. Title to land — Sale of mineral rights — Champerty, xxxv., 327. See Champeett. 4. Constitutional law — Imperial Acta in force in Yukon Territory — Title to land — "Torrens System" — Transfer hy registered owner — Fraud — Litigious rights — Notice of Us pendens — Irregular registration — Indorse- ments upon certificate of title — Construction of statute — Pleading — OhjecUon taken on appeal — Yukon Territorial Court Rules — Yukon Ordinances, 1902, c. 17 — Rules US, 115, lit — Waiver — Estoppel, xxxvi., 251. See Title to Land. And see Champeett. 5. PuMio work — Damage to adjacent lands — Negligence — Liability of Crown — ■ "Exchequer Court Act," s. 20 — Bar to ac- tion — "Rideau Canal Act," S Geo. IV. c. 1 (U.C.) — lAmitation of actions. Olmstead v. The King, liii., 450. See Ceown. LOCAL OPTION. Municipal Act — Vote on by-law — Ward divisions — Single or multiple voting — ^JB. 8. O. (ISO!) c. 215, s. Ul—S Edw. VII. c. 19, s. 355, xxxix., 286. See LiQuoE Laws. LONGSHOREMAN. Negligence — Common employment — Con- struction of statute — S Edw. VII. c. 11, s. 2, s.-s. S (N.B.) — "longshoreman" — "Work- man."] — The plaintiff, a longshoreman, was engaged by the defendant, in Montreal, to act as foreman on his contracts as a steve- dore at the port of St. John, N.B. While in the performance of his work, the plain- tiff went into the hold to re-arrange a part of the cargo in a vessel, in the port of St. John, and, in assisting the labourers, stood under an open hatchway where he was in- jured by a heavy weight falling upon him on account of the negligence of the winchman in passing it across the upper deck. The winchman had attempted to remove the article which fell, without any order from his foreman, the plaintiff, and with impro- perly adjusted tackle. In an action for dam- ages instituted in the Superior Court, at Montreal: — Held, that the plaintiff was en- titled to recover either under the law of the province of Quebec or under the provisions of the New Brunswick Act, 3 Edw. VII. ch. 11, as he came within the class of per- sons therein mentioned to whom the law of the latter province relating to the doctrine of common employment does not apply. Lo- gan v. Lee, xxxix., 311. » And see Negligence. 645 MAGISTEATE. 646 liOBD CAMPBELL'S ACT. 1. Railways — Negligence — Braking ap- paratus — Sand valves — Defects in machinery — Employer's liability — Provident society — Condition of indemnity- — Right of action, xxxiv., 45. See Negligence. 2. 'Negligence — Railways — Breach of sta- tutory duty — Common employment — Nova Scotia Railway Act, R. S. N. S. (1900) c. S9, s. 25i — Employers' Liability Act — Fatal Injuries Act, xxxix., 593. See Negligence. 3. Negligence of fellow servant — Opera- tion of railway — Defective switch — Indem- nity and satisfaction — Public work — Tort — Liability of €rown — Right of action — Ex- chequer Court Act, s. 16 (o) — Art. 1056 G. C, xl., 229. See Negligence. 4. Negligence — Findings of jury — Verdict — Damages, Cout. Gas. 343. See Neqligei^ce. 5. Action by dependent — Injury sustained outside province — Right of action in Mani- toba — Evidence — Answers by jury. Lewis V. G. T. P. R. R., lii., 227. See Negligence. LORD'S DAY. 1. Constitutional law — Sunday observance —Legislative jurisdiction.^ — ^Legislation to prohibit on Sunday the performance of work and labour, transaction of business, engag- ing in sport for gain or keeping open places of entertainment is within the jurisdiction of the Parliament of Canada. Attorney- Oeneral for Ontario v. Hamilton Street Rail- way Co. ([1903] A. C. 524) followed. (Leave to appeal to Privy Council refused, 26th July, 1905). In re Legislation respect- ing Abstention from Labour on Sunday, XXXV., 581. And see Constitutional Law. 2. Criminal law— 6 & 7 Edw. VII. c. S— Procedure — Alberta and Saskatchewan — In- dictable offence — Prelimvnary inquiry — Pre- ferring charge — Consent of Attorney-Gen- eral — Powers of deputy — "Lord's Day Act," 8. 17, xliii., 434. See Criminal Law. 3. Criminal Code— 6 & 7 Edw. VII. c. 8— Proced/ure — Alberta and Saskatchewan — In- dictable offence — Preliminary inquiry — Pre- ferring charge — ■ Consent of Attorney-Gen- eral — Powers of deputy — "Lord's^ Day Act," s. 17. In re Criminal Code, xliii., 434. See Cbiminal Law. tary.] — D. sold to an incorporated company for the purpose of assisting in carrying on a lottery scheme and, subsequently, con- veyed the same lands to the plaintiff, who brought an action, au pititoire, claiming the lands and to have the deed to the company set aside. — Eeld, per Fitzpatrick, O.J., and Anglin and Brodeur, J J., that the conveyance to the company was void for illegality and that the plaintiff had the right of action to be declared owner of the lands subsequently con- veyed to him and to have the prior convey- ance to the company set aside as having been granted for illicit consideration. Lapointe V. Messier (49 Can. S. C. K. 271) followed. — Per Duff, J. — In the circumstances of the case the pretended contract was ultra vires and void and no right of property passed to the company. Ashbury Railway Carriage and Iron Co. v. Riche (L. R. 7 H. L. 653) followed. And, further, as the notary be- fore whom the deed in question was exe- cuted was, at the time of its execution, an official of the company assuming to purchase the lands, the deed was without validity as an authentic conveyance of the lands to the company. — Per Idington, J., dissenting. — As the plaintiff obtained his conveyance in circumstances which placed him in the same position as the vendor, who had knowingly entered into the illicit contract with the com- pany, and to whom the right of recovery was not open, there could be no relief given by the courts as prayed in the action. — Judg- ment appealed from (Q. E. 43 S. C. 50) affirmed, Idington, J., dissenting. Prevost v. Bedard, li., 149. LOTTERY. 1. Illicit contract — Sale of land — Subse- quent purchaser — Action petitoire — Right of recovery — Ultra vires — • Legal maxim — No- 2, Advances for — Interest - sideration, xxxvii., 613. See Deed. - Illegal con- 3. Illicit contract — -Sale of land — Subse- quent purchaser — Action pititoire — Right of recovery — Ultra vires — Legal maxim — -^'Ex turpi causa non oritur actio" — Notary — Official of purchasing company — Validity of deed. Prevost v. Bedard, li., 149. gee Contract. LUMBERING OPERATIONS. Fishery and game leases — Personal servi- tude — Use and occupation — Right of action — Action en complainte — Renewed leases — Priority — Works to facilitate lumbering operations — Watercourses — Driving logs — ■ Storage dams — Penning back waters out of tract of transmission — Injury to preserves — Damages — Injunction — Demolition of works, xlv., i. See Rivers and Streams. MACHINERY. See Chattels ; Trade Fixtdbes. MAGISTRATE. See Justice of the Peace; Police Magis- trate ; Stipendiary Magistrate. Wi MANDAMUS. 648 MAINTENANCE. 1. Conveyance of land — "Qxieheo Act, mjf — Introduction of English criminal law — Affinity and consanguinity — Parties inter- ested in litigation — Litigious rights — Facte de guotd litis — Illegal consideration — Speci- fic performance — Retrait successoral • — - Pleading, xxxiv., 24. See Champerty ; Titie to Land. 2. Champerty — Maintenance — Malicious motive — Cause of action — Costs of unsuc- cessful defence — Damages, xxxix., 354. See Champerty. both parties, dismissed the appeal, Idingtou, J., dissenting. [Note. — On the 15th of May, 1911, the Judicial Committee of the Privy Council refused leave for an appeal in form& pauperis; 44 Can. S. C. R. ix.] Ren- ton V. Gallagher, xlvii., 393. MALICE. 1. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — Evidence — Presumption of malice — Right of action, xxxix., 340. See Slander and Title. 2. Champerty — Moin.ien.amce — Malicious motive — Cause of action — Costs of unsuc- cessful defence — Damages, xxxix., 354. See Champerty. MALICIOUS PROSECUTION. 1. Reasonable and proiaile cause — Bond, fide belief in guilt — Burden of proof — Right of action for damages — Art. 1053 G. G. — Pleading and practice.^ — An action for dam- ages for malicious prosecution will not lie where it appears that the circumstances under which the information was laid were such that the party prosecuting entertained a reasonable bond fide belief, based upon full conviction founded upon reasonable grounds, that the accused was guilty of the offence charged. Abrath v. North Eastern Railway Co. (11 App. Oas. 247), and Coa> V. English, Scottish and Australian Bank ( (1905) A. C. 168) referred to. — SemUe, that in such cases the rule as to the burden of proof in the Province of Quebec is the same as that under the law of England, and the plaintiff is obliged to allege and prove that the prosecutor acted with malicious intentions or, at least, with indiscretion or reprehensible want of consideration. Sharpe V. Willis (Q. R. 29 S. C. 14; 11 Rev. de Jur. 538) and Durooher v. Bradford (13 R. L. (N.g.) 73) disapproved. — Judgment ap- pealed from (Q. R. 16 K. B. 333) affirmed. HStu V. Dixville Butter and Cheese Assoc'n, xl., 128. 2. Malicious prosecution — Probable cause — Evidence — Onus — Honest be- lief — Practice — Questions for jury.] — On appeal from the judgment of the Court of Appeal for Manitoba (19 Man. R. 478), ordering that the judgment for the plaintiff, appellant, entered by Cameron, J., at the trial, upon the verdict of the jury, should be set aside and that a nonsuit should be entered, the Supreme Court of Canada, after hearing counsel on behalf of MANDAMUS. 1. Commissioner of Mines — Appeal from decision — Quashing appeal — Final judgment ^—Estoppel — Remedy.] — Where an appeal from a decision of the Commissioner of Mines for Nova Scotia on an application for a lease of mining land is quashed by the Supreme Court of the province on the ground that it was not a decision from which an appeal could be asserted, the judg- ment of the Supreme Court is final and binding on the applicant and also on the commissioner even if he is not a party to it. — The quashing of the appeal would not, necessarily, be a determination that the deci- sion was not appealable if the grounds stated had not shewn it to be so. — -In the present case the quashing of the appeal precluded the commissioner or his successor in office from afterwards claiming that the decision was appealable. — If the commissioner, after such appeal is quashed, refuses to decide upon the application for a lease the appli- cant may compel him to do so by writ of mandamus. (Judgment appealed from (36 N. S. Rep. 282) affirmed. Drysdale v. Do- minion Coal Co., xxxiv., 328. 2. Mandamus — Driving timber — Order to fin? tolls — Past user of stream — River im- provements- — Appeal — R. S. 0. [i897] c. m, s. 13.1— -By R. S. O. [1897] ch. 142, sec. 13, the owner of improvements in a river or stream used for floating down logs may obtain from a district judge an order fixing the tolls to be paid by other parties using such improvements. On application for a writ of mandamus to compel the judge to make such an order : — Held, affirming the judgment of the Court of Appeal, 16 Ont. L. R. 21), Davies, J., dubitante, and Idington, J., expressing no opinion, that such an or- der had effect only in case of logs floated down the river or stream after it was made. Held per Idington, J. — As sec. 15 gives the applicant for the order an appeal from the judge's refusal to make it mandamus will not lie. Held, per Duff, J. — The mandamus could issue if the judge had jurisdiction to make the order though he refused to do so in the belief that a prior decision of a Divi- sional Court was res judicata as to his power. The C. Beck Manufacturing Co. v. Valin and TVie Ontario Lumber Co., xl., 523. 3. Appeal — Jurisdiction — Final judgment — Mandamus.] — ^The respondent applied for a peremptory writ of mandamus to compel appellants to purchase lands for the site of a parish church, and obtained an order, as follows. — "Vu la requSte ci-dessus, il est or- donng d'emaner un bref de mandamus tel que demands." An ordinary writ of sum- mons issued, indorsed as a writ of man- damus, but the copy served did not contain any indorsement Of the nature of the claim. An exception to the form was dismissed, and 649 ■ MAEGINS.'-' 650 the Court of Queen's Bench quashed an appeal, (Ze piano. "Parceque (1) Les ap- pelants ont inscrit en appeal de I'ordon- nance du juge permettant remission du bref de mandamus en cette cause, sans au pr6- alable obtenir la permission; (2) Parceque la dite ordonnanee n'est pas un jugement final, mals une interlocutoire." The regis- trar, considering that the order was not simply for the issue of a summons under art. 993 C. P. Q., but a peremptory order for the issue of a writ of mandamus, under art. 996 C. P. Q., held that the judgment was iinal in its nature and, therefore, ap- pealable. This decision was reversed, on appeal, and the application for approval of the security for costs was dismissed. Syn- dics de St. Valier v. Gatellier, Cout. Cas. 202. 4. Railways — Construction and operation — Location plans — Delaying notice to treat — Action to compel expropriation — -Compensa- tion in respect of lands not acquired — Use of highway — Grossing public lane — Nui- sance.] — The approval and registration of plans, etc., of the located area of the right-of-way, under the provisions of the "Railway Act," and the subsequent con- struction and operation of a railway along such area, do not render the railway com- pany liable to mandamus ordering the ex- propriation of a portion of the lands shewn upon the plans which has not been physic- ally occupied by the permanent way so con- structed and operated. — Judgment appealed from reversed, the Chief Justice and Da- vies, J., dissenting. Vancouver, Victoria d Eastern Ry. & Navigation Co. v. McDonald, xliv., 65. 5. Municipal corporation — Statutory duty — County officers — ■ O'ffioe accommodation — Discretion.} — The courts should not inter- fere by mandamus with the reasonable ex- ercise by a County Council of its discretion in selecting the place in the county at which an office shall be provided for the County Crown Attorney and Clerk of the Peace. — Judgment of the Court of Appeal (19 Ont. L. E. 659) afBimed. Bodd v. County of Essex, xliv., 137. 6. Watercourses — Riparian rights — Ex- propriation — Trespass — Torts — Diversion of natural flow — Injurious affection — Damages —^Execution of statutory powers — Arbitra- tion — Construction of statute — 59 Viet. c. kk iN.S.), xxxvii., 464. See Rivers and Streams. 7. Special leave to appeal — Discretion — Matter in controversy, Cout. Cas. 322. See Appeal. 8. Appeal — Special leave — PuMic interest — Important question of law — Exemption from taxation — School rates — R. S. C. 1906, c. 139, s. JiS, xlii., 691. See Appeal. MANDATE. 1. Bills and notes — Material alteration — Forgery — Partnership — Assent of parties — Liability of indorsee — Construction of stat- ute — "Bills of Exchange Act," xl., 458. See Forgery ; And see Principal and Agent. 2, Laforest v. Factories Ins. Co., liii., 296. .s'ee Principal and Agent. MANITOBA. Assessment and taxation — Constitutional law — Exemptions from taxation — Land sub- sidies of the Canadian Pacific Railway — Ex- tension of boundaries of Manitoba — Con- struction of statutes in respect to the con- stitution of Canada, Manitoba and the North- West Territories — Construction of contract — Grant in prmsenti — Cause of action — Jur- isdiction — Waiver, xxxv., 550. See Assessment and Taxes. MANITOBA SWAMP LANDS. Crown lands — Settlement of Manitoba claims— JfS d Ji9 Vict. c. 50 (D.)—49 Vict. 0. 38 (Man.) — Construction of statute — Title to lands — Operation of grant — Trans- fer in prcesenti — Condition preoedent — As- certainment and identification of swamp lands — Revenues and emblements — Constitu- tional law.] — The first section of the "Act for the Pinal Settlement of the Claims of the Province of Manitoba on the Dominion" (48 & 49 Vict. ch. 50) enacts that "all Crown Lands in M'anitoba which may be shewn, to the satisfaction of the Dominion Government, to be swamp lands shall be transferred to the province and enure wholly to its benefit and uses." — Held, affirming the judgment appealed from (8 Ex. C. R. 337) Girouard and Killam, JJ., dissenting, that the operation of the statutory conveyance in favour of the Province of Manitoba was suspended until such time or times as the lands in question were ascertained and identified as swamp lands and transferred as such by order of the Governor-General m Council, and that, in the meantime, the Governinent of Canada remained entitled to their administration, and the revenues de- rived therefrom enured wholly to the benefit and use of the Dominion. Atty.-Gen. for Manitoba v. Atty.-Gen. for Canada, xxxiv., 287. " MARGINS." Principal and agent — Broker selling on Grain Exchange — Contract in broker's name — Liability of principal — Board rules — Indemnity, xli., 618. See Broker. 651 MAEEIAGE LAWS. 653 MARINE INSURANCE. See Insurance, Marine. MARITIME LAW. 1. Collision — Inland waters — Harrow channel — Boston 'harl>our.'\ — ^Bule 25 of the United States "Inland rules to prevent Col- lision of Vessels" provides that "in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel."— -jffeiti, affirming the judgment appealed against (9 Ex. C. R. 160) that the inner harbour of Boston, Mass., is not a narrow channel within the meaning of said rule. The "Calvin Austin" V. Lovitt, xxxv., 616. 2. Shipping — Material men — Supplies furnished for "last voyage" — Privilege of dernier equipeur — Round voyage — Seixure of ship— Arts. 238S, 2391 C. G. — Art. 931 O. P. Q. — Construction of statute — Ordon- nances de la Marine, 1681, xl., 45. See Ships and Shipping. And see Adshealtt Law ; Navigation ; Shipping. 3. Collision — Negligence — Failure to hear signals — Evidence, xli., 54. See Admikaltt Law. MARKSMAN. Mortgage — Money advanced to construct buildings — Lien for materials supplied — Payment to contractor — Transactions in froMd of mortgagee's rights — Redemption — Costs, xxxviii., 557. See Moktgage. MARRIAGE. Construction of will — Description of lega- tee — Devise "to my wife" — Bigamous mar- riage — Evidence — Burden of proof."] — A de- vise made in a will "to my wife" was claimed by two women, with both of whom the tes- tator had lived in the relationship of husband and wife.. — Seld, per Idington, J. — That, even if the first marriage was assumed to have been validly performed, all the sur- rounding circumstances shewed that, by the words "to my wife," the testator intended to indicate the woman with whom he was living, in that relationship, at the time of the execution of the will and thereafter up to the time of his death. — Seld, per Duff, J. — That the woman who claimed to have been first married to the testator had not sufiiciently proved that fact, and that the other woman, who was living with the tes- tator as his wife at the time of the execu- tion of the wiU and up to the time of his death, was entitled to the devise. — Held, per Davies and Maclennan, JJ., dissenting, — That the first marriage was sufiiciently proved and, consequently, that the devise went to the only person who was the legal wife of the testator. — Fitzpatrick, C.J., was of opinion that the appeal should be dis- missed.— Judgment appealed from (13 B.C. Bep. 161) affirmed, Davies and Maclennan, JJ., dissenting. Marks v. Marks, xl., 210. MARRIAGE CONTRACT. 1. Will — Testamentary capacity — Evidence —Art. 831 G. CI — An action to annul a marriage contract and set aside a will and codicil on grounds of Insanity and duress was dismissed at the trial, and the appeal was against the judgment of the Court of Eeview, affirming that decision. The Su- preme Court of Canada dismissed the ap- peal with costs, for the reasons given in the court below. (Q. R. 25 S. C. 275). Hotte V. Birabin, xxxv., 477. 2. Donatio inter vivos — Ante-nuptial con- tract — Oift to wife — Payment at death of husband — Institution contractuelle — Oner- ous gift, xliv., 197. See Donation. MARRIAGE LA'SVS. 1. Constitutional law — "Marriage and Divorce" — "Solemnization of Marriage" — Jurisdiction of Parliament — Jurisdiction of legislature — Federal validating Act — Re- ligious belief — Canonical decrees — Civil rights — "B. N. A. Act" (1867), ss. 91 and 92— Arts. 127 et seq. G. Ci — ^The parlia- ment of Canada has no authority to enact a bill in the following form: — 1. The "Mar- riage Act," chapter 105 of the Revised Stat- utes, 1906, is ^mended 'by adding thereto the following section : — "3. Every ceremony or form of marriage heretofore or hereafter per- formed by any person authorized to per- form any ceremony of marriage by the laws of the place where it is performed, and duly performed according to such laws, shall everywhere within Canada be deemed to be a valid marriage, notwithstanding any dif- ferences in the religious faith of the per- sons so married and without regard to the religion of the person performing the cere- mony. — "(2) The rights and duties, as mar- ried people of the respective persons mar- ried as aforesaid, and of the children of such marriage, shall be absolute and complete, and no law or canonical decree or custom of or in any province of Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever." (Affirmed by Privy Council, 29th July, 1912.) — Per Idington, J.— The retrospective part would be good as part of a scheme for concurrent legislation by Parliament and legislatures confirming past marriages which, probably, neither effectively can do. The prospective part, so far as possible to make it an effec- tive prohibition of religious tests, may he good, but doubtful, and the probable pur- pose can be reached by a better bill. — Per Davies, Idington anl Duff, JJ. — The law of the Province of Quebec does not render null and void, unless contracted before a Roman 663 MASTEE AND SEEYANT. 654 Catholic priest, a marriage in suet province between two Roman Catholics that would otherwise be binding. Anglin, J., contra. Fitzpatrick, C.J., expressing no opinion. — The law of Quebec does not render void, unless contracted before a Roman Catholic priest, a marriage otherwise valid where one party only Is a Roman Catholic. — The Parliament of Canada has no authority to enact that a marriage between Roman Catholics, or a "mixed marriage," not con- tracted before a Roman Catholic priest and whether heretofore or hereafter solemnized shall be valid and binding (affirmed by Privy Council, 29th July, 1912.)— Per Idington, J. — Parliament has power to declare valid such a marriage heretofore solemnized to be concurred in by the legislature of the prov- ince concerned, and the like power as to a marriage hereafter to be solemnized if and when the province fails to provide adequate means of solemnization. In re Marriage Laws, xlvi., 132. 2. Appeal — Jurisdiction — Amoun^t in con- troversy — Future rights, xxxiv., 274. See Appeal. MARRIED AVOMAN. 1. Promissory note — Security for deit -i— Husband and wife — Parent and child,] — C, a man without means, and W., a rich money lender, were engaged together in stock specu- lations, W. advancing money to C at a high rate of interest in the course of such busi- ness. C. being eventually heavily in the other's debt it was agreed between them that if he could procure the signatures of his wife and daughter, each of whom had pro- perty of her own, as security, W. would give him a further advance of $1,000. Thougb unwilling at first the wife and ' daughter finally agreed to sign notes in favour of C. for sums aggregating over $7,00o, which were delivered to W. Neither of the makers had independent advice. Held, re\ersing the judgment appealed from, Tasehereau, C.J., dissenting, that though the daughter was twenty-three years old she was still subject to the dominion and influence of her father and the contract made by her without in- dependent advice was not binding. — Held also, Tasehereau, C. J., and Killam, J., dis- senting, that his wife was also subjected to influence by C. and entitled to indeoend- ent advice and she was, therefore, not liable on the note she signed. — Held, per Sedge- wick, J., that the evidence produced disclosed that the transaction was a conspiracy be- tween C. and W. to procure the signatures ofthe notes and that the wife of C. was de- ceived as to his financial position and the pu^Jose for which the notes were required, therefore, the plaintiff could not recover. Cow V. Adams, xxxv., 393. ■ 2. Separate property — Liability for dehts of hushand — Execution of judgment — Re- gistry law — "Real Property Act" — "Mar- ried Women's Act," R. S. M. (1891 ) ch. 95 — Conveyance during coverture.] — Where land was transferred, as a gift, to a mar- ried woman by her husband, during the time that the "Married Women's Act." R. S. M. (1891) ch. 95, was in force, the husband being then solvent, and a certificate of title therefor issued in her name under the pro- visions of the Manitoba "Real Property Act," the beneficial as well as the legal interest in the land vested in her for her separate use, and neither the land nor its proceeds can be taken in execution for debts of the husband subsequently incurred, notwithstanding the provisions of the second section of the "Mar- ried Women's Act" respecting property re- ceived by a married woman from her hus- band during coverture. Eraser v. Douglas. xl., 384. 3. Husband and wife — Contract — Separate estate — Security for husband's debt — Inde- pendent advice — Stare decisis.] — The confi- dential relations between husband and wife are such that where the latter conveys or encumbers her separate property for her hus- band's benefit she is entitled to the protection of independent advice ; without that her ac- tion does not bind her. Goo) v. Adams (35 Can. S. C. R. 393) followed, Idington, J., dissenting. — Only in very exceptional cir- cumstances should the Supreme Court re- fuse to foUow its own decisions. — ^Judgment of the Court of Appeal (17 Ont. L. R. 436) reversed. Stuart v. Bank of Montreal, xli., 51d. , See HtrsBAND and Wife. 4. Practice — Pleading — Amendment or- dered by court — Legal community — Right of action — Reprise d'instance — Arts. 7S, ITU, 176 G. P. Q.—R. S. C. c. 135, ss. 63, 64. North Shore Power Go. f. Duguay, xxxvii., 624. 5. Covenant in mortgage — Signature pro- cured by fraud — Pleading — Won est factum — Estoppel. Morgan v. Dominion Permanent Loan, 1., 485. See Estoppel. 6. Covenant in mortgage — Signature pro- cured by fraudr^Pleading — Non est factum —Estoppel, 1., 485. See Fraud. 7. QMeSec marriage laws — Community of property — Dissolution by deathr— Failure to make inventory — Insolvent estate — Gon- tinuation of community — Estoppel — Re- nunciation — Husband and wife, lii, 662. See Husband and Wife. MASTER AND SERVANT. 1. Emplotek and Employee, 1-14. 2. Engagement and Dismissal, 15. 3. Liability op Employee foe Injueies TO Workman. (a) For Cause Unknown, 16, 17. (b) Common Employment, 18-33. (c) Contributory Negligence, 34-41. (d) Dangerous Material, Way, Works and Plant, 42-52. (c) Defective Gonstruetion and Ma- chinery, 53-58. (f) Other Cases, 59-66. 1. Employer and Employee. 1. Landlord and tenant Negligence of employee — Trespasser — t.]— The 655 MASTEK AISTDn SERVANT. 656 workmen of a contractor for tearing down portions of a building in order to make alter- ations turned on a water-tap in a room where tbey were working and neglected to turn it off whereby goods in the story be- low were damaged by water. — Held, Davies and Nesbitt, JJ., dissenting, that the act of the workmen was done in course of their employment ; that it was negligent ; and that the owner of the goods could recover damages though he was in possession merely as an overholding tenant who had not been ejected. Sievert v. Brookfield, xxxv., 494. 2. Contract of hiring — Manager or expert — Diamissal.] — The manager of a veneer company having heard of plaintiff as a man who could usefully be employed in the busi- ness wrote him a letter in which he stated that "what we want is a inan who is a good veneer maker and who knows how to make all kinds of built up woods that are saleable, such as panels. . . . We want you to take full charge of the mill, that is, the manufacturing." In reply plaintiff said : "Would say I understand fully the making of the articles you speak of as well as numerous others with proper machines and proper men to run them." And in a sub- sequent letter he said : "I feel from all the experience I have had I have mastered the entire principle of it (the veneer business), knowing machines required for various work, what veneer has got to be when completed." Having been hired by the manager be was discharged six weeks later and brought an action for wrongful dismissal. — Held, re- versing the judgment of the Supreme Court of New Brunswick (37 N. B. Rep. 332) that he was not hired as a business manager but as an expert in the veneer business and as the evidence established that he was not competent he was properly discharged and could not recover. Allcroft v. Adams, xxxviii., 365. 3. Master and servant — Negligent driving — Horse owned hy servant — Vehicle and harness owned 'by master — Duty of em- ployee — Liability for damages.^ — T., an employee of D., while in discharge of the duties of bis employment, driving his own horse attached to a vehicle belonging to his employer, who also owned the harness, negli- gently caused injuries to C, which resulted in his death. In an action for damages by the widow and children of C. : Held, affirm- ing the judgment appealed from (Q. R. 15 K. B. 472), that as the injury complained of was caused by the fault of the servant during the performance of duties in the course of his employment, the master and servant were jointly and severally respon- sible in damages. Turcotte v. Ryan, xxxix., 8. \ 4. Landlord and tenant — Negligence — Master and servant — Acts in course of em- ployment — Alterations 'to plumbing — Dam- age by steam, etc. — Responsibility of con- tractors — Control of premises.'] — In the lease of a shop, the landlord agreed to supply steam heating and, in order to improve the system, engaged a firm of plumbers to make alterations. Before this work was com- pleted and during the absence of the ten- ant, the plumbers' men, who were at work in another part of the same building, with steam cut off for that purpose, at the re- quest of the caretaker employed by the landlord, turned the steam on again which, passing through unfinished pipes connected with the shop, escaped through an open valve in a radiator and injured the tenant's goods. — HeTd, that the landlord was liable in damages for the negligent act of his caretaker in allowing steam to be turned on without ascertaining that the radiator was in proper condition to receive the pressure, and that the plumbing firm were also re- sponsible for the negligence of their em- ployees in turning on the steam, under such circumstances, as they were acting in the course of their employment in what they did although requested to do so by the caretaker. — The judgment appealed from (16 Man. R. 411) was affirmed with a variation declaring the plumbers jointly liable with the landlord. (Leave to appeal to Privy Council refused, 12th March, 1908.) Mc- Nichol V. Malcolm:, xxxix., 265. And see Landlord and Tenant. 5. Profit-sharing — Partnership — Evi- dence — Statutes — R. S. B. C. 1911, c. 153, s. S; c. 175, s. Jf — 'Words and phrases — "Partnership."'] — The "Master and Ser- vant Act," R. S. B. O. 1911, ch. 153, by sec. 3, respecting profit-sharing by servants, de- clares that no agreement of that nature shall create any relationship in the nature of part- nership. Section 4 of the "Partnership Act," R. S. B. C. 1911, ch. 175, provides rules for determining partnership and, by sub-sees. 2 and 3, declares that the sharing of gross profits does not, of itself, create a partner- ship, that the receipt of a share of the pro- fits of a business is primd facie evidence of a partnership, that the receipt of such share or of a payment varying with the profits does not, of itself, make the person receiv- ing the same a partner, and that a contract to remunerate a servant by a share of the profits does not, of itself, make him a part- ner. The plaintiff, an employee of the de- fendant, by the terms of his engagement was to receive as remuneration for his services a one-half share of the profits of defendant's business and conversations took place re- garding an arrangement whereby plaintiff might have a "share in the business," but no definite agreement was made. Plaintiff, claiming to have become a partner, wrote a letter to defendant asserting that he had an undivided interest in the business and asking to execute articles of partnership. Defendant replied to this letter in an evasive and temporizing manner and the business continued to be conducted without any change. Later on, the defendant served upon the plaintiff a notice of dissolution of partnership and, in the notice as well as in the correspondence, made use of the word "partnership" in referring to the re- lations between them. — Held, reversing the judgment appealed from (18 B.C. Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that he had been admitted as a part- ner in the business in the strict legal sense and that the indefinite use of the term "partnership" in the correspondence and notice did not, in the circumstances, amount to evidence of an agreement that there should be a partnership. Donkin v. Disher, xlix., 60. 657 MASTER AND SERVANT. 658 6. Negligence — Use of motor car — Dis- obedience — Act in course of employment — Employer's liability.'] — ^B. was owner of an automobile and hired a chauffeur to run it, giving him positive instructions that the car was not to be used except for purposes of the owner and his family, and that, when not in use for such purposes, it was to be kept in a certain garage. On the evening of the accident in question the chauffeur took his master's family to a theatre, in Winnipeg, and was directed by them to take the car to the garage and return for them after the close of the performance. The chauffeur took the car from the garage before the appointed time and proceeded with it for the purpose of visiting a friend in a distant part of the city. While so using the car, contrary to instructions, he negligently ran down the plaintiff, causing injuries for whdch an action was brought to recover damages against B. — Held, af- firming the judgment appealed from (24 Man. E.. 235), that, at the time of the ac- cident, the chauffeur was not engaged in the performance of any act appertaining to the course of his employment as the ser- vant of the owner of the car and, con- sequently, his master was not liable in dam- ages. Storey v. AsMon (Xi. R. 4 Q. B. 476) , foUowed. Balparin v. Bulling, 1., 471. 7. Common employment — Defence by Crown — Workmen's Compensation Act, xxxvi., 462. See Employee and Employee. 8. Joint operation of railway — Master and servant — Negligence — Responsibility for act of joint employee — Traffic agreement — 62 & 63 Vict. c. 5 (D.), xxxvi., 655. See Railways. 9. Negligence of fellow servant — Opera- tion of railway — Defective switch — Public work — Tort — Liability of Crown — Right of action — Exchequer Court Act, s. 16 (c.) — " Lord Campbell's Act " — Art. 1056 G. C„ xl., 229. See Negligence. 10. Constitutional law — Railway company — Negligence — Agreements for exemption from liability — Power of Parliament to pro- hibit, xxxvi., 136. See Railways. 11. Joint operation of railway — Negli- gence — Responsibility for act of joint em- ployee — Traffic arrangement, xxxvi.. 655. See Railways. 12. Algoma Steel v. Dube, liii., 'tS'' 13. Eire of machinery — Negligence of hirer — Negligence of owner, liii, 481. See Negligence. 14. Railways — Negligence — Ejecting tres- passer from moving train — - Imprudence — lAabiUty for act of servant, liii., 376. See Railways. 2. Engagement and Dismissal. 15. Master and servant — Contract of ser- vice — Termination by notice — Incapacity of servant — Permanent disability — Findings of jury — Weight of evidence.'] — Where a con- tract for service provided that it could be terminated by either party giving the other a month's notice therefor or by the employer paying or the employee forfeiting a month's wages. — Held, reversing the judgment ap- pealed from (36 N. S. Rep. 158) that ill- ness of the employee by which he is perman- ently incapacitated from performihg his ser- vice would itself terminate the contract.— Held, also, Killam, J., dissenting, that an illness terminating in the employee's death and during the whole period of -svhich he is incapacitated for service is a permanent illness though both the employee and his physician believed that it was only tempor- ary. — ^By a rule of the employer an em- ployee was only to be paid for the time he was actually on duty. One of the employees had accepted and signed a re- ceipt for a month's wages from which the pay for two days on which he was ab- sent from duty was deducted and his con- versation with the other employees shewed that he was aware of the rule, but^ no formal notice of the same was ever given him. Having died after a long illness his executrix brought an action for his wages during such period, and the jury found on the trial that he did not continue in the em- ploy after notice of the rule and acquies- cence in his employment under the terms thereof. — Held, that such finding was against evidence and must be set aside. Dartmouth Ferry Commission v. Marks, xxxiv., 366. (a) For Cause 'Unknown. 16. Negligence — Findings of jury — New trial.]— In constructing the bins for an elevator a staging had to be raised as the work progressed by ropes held by men standing on the top until it could be secured by dogs placed underneath. When secured, workmen stood on the staging and nailed planks to the sides of the bin. The planks were run along a tramway at the side of the bins by rollers and thrown off to the side of the bin farthest from the tram- way. While two men on 'the top of the bin were holding up the staging until it could be secured a plank on top of the ad- joining pile fell off. In falling it hit the men on top of the bin, and they were pre- cipitated to the bottom, and one of them killed. In an action by his widow against the contractor for building the elevator, twenty-five questions were submitted_ to the jury, and on their answers a verdict was entered for the plaintiff: — Held, Idington, J., dissenting, that while the falling of the plank caused the accident there was no finding that the same was due to the negli- gence of the defendant nor any that the death of deceased was due to negligence for which, under the evidence, defendant was responsible. Therefore, and because many of the questions submitted were irrelevant to the issue and may have confused the jury, there should be a new trial. Jamieson v. Harris, xxxv., 625. 659 MASTEE ANT) SERVAJSTT. 660 17. Negligence — Proximate cause — Find- ing of jury — Evidence.'] — T., an engineer, was scalded by steam escaping when the front of a -valve was blown out by the pres- sure on it. In an action for damages against his employers the jury found that the bursting was caused by strain on the valve, that the employers were guilty of negligence in allowing the engine to run on an improper bed and tha* they did not supply proper appliances and keep them in proper condition for the work to be done by T., the engine-bed and room all being in bad condition ; they also found that the valve was not defective. — Reld, that in the absence of a finding that the negligence imputed to the employers was the proxi- mate cause of the injury to T., and of evi- dence to justify such a finding, the action must fail. Thompson v. Ontario Sewer Pipe Co, xl., 396. (b) Common Employment. 18. Mining operations — Negligence of higher officials — Fellow workmen — Employ- ers' Liability Act.] — ^The negligence of the superintendent of a mine would be negli- gence of a co-employee of a miner injured for which the employers would not be liable at common law, although there might be liability under the British Columbia "Em- ployers' Liability Act" (R. S. B. C. c. 69, s. 3), for negligence on the part of the superintendent. — Per Taschereau, C.J. An employee who has left the service of the common master cannot be regarded as a fellow workman of servants engaged sub- sequently. Hosking v. Le Roi No. 2, ixxiv., 244. And see Negligence. 19. Negligence — Common employment ■ — Defence hy Crown — Workmen's Compensa- tion Act.] — The Manitoba Workmen's Com- pensation Act does not apply to the Crown. Idington, J., dissenting. — In Manitoba the Crown as represented by the Government of Canada may in an action for damages for injuries to an employee rely on the defence of common employment. Idington J., dis- senting. Ryder v. The King, xxxvi., 462. 20. Negligence — Common employment — Construction of statute — 3 Edw. VII. c. 11, s. 2, s.-s. 3 (N.B.) — "Longshoreman" — " Workman."] — The plaintiff, a longshore- man, was engaged by the defendant, in Montreal, to act as foreman on his con- tracts as a stevedore at the port of St. John, N.B. While in the performance of his work, the plaintiff went into the hold to re-arrange a part of the cargo in a ves- sel, in the port of St. John, and, in assist- ing the labourers, stood under an open hatchway where he was injured by a heavy weight falling upon him on account of the negligence of the winchman in passing it across the upper deck. The winchman had attempted to remove the article which' fell, without any order from his foreman, the plaintiff, and with improperly adjusted tackle. In an action for damages instituted in the Superior Court at Montreal :^Held, that plaintiff was entitled to recover either under the law of the Province of Quebec or under the provisions of the New Bruns- wick Act, 3 Edw. VII. c. 11, as he came within the class of persons therein men- tioned to whom the law of the latter prov- ince relating to the doctrine of common employment does not apply. Logan v. Lee, xxxix., 311. And see Negligence. 21. Negligence — Personal action — Com- mon employment.] — The doctrine of com- mon employment does not prevail in the Province of Quebec. The King v. Desrosiers, xli., 71. And see Negligence. 22. Negligence — Employer's liability — Competent superintendence — Common em- ployment — Contributory negligence.] — B. was employed by the company as a labourer in preparing a site for a power house, and was working on a narrow ledge on a hill- side preparing a place on wbicb to erect a drilling machine. Stones or earth falling from above struck him and he fell off the ledge to the bottom of the excavation, sus- taining severe injuries. In an action against the company for damages under the common law it was contended that failure to protect the workmen by a barrier above the ledge was negligence for which defend- ants were responsible. — Held, per Davies and Anglin, JJ., that such negligence was that of the company's superintendent, a fel- low servant of B., and the company was not responsible. — Per Duff and Anglin, JJ., fol- lowing Wilson V. Merry (L. R. 1 H. L. Sc. 326), that, as it was proved that the com- pany had appointed a competent engineer to take charge of the work, invested him vi^ith the requisite authority and responsi- bility for protecting the workmen, and sup- plied him with the materials necessary for the purpose, tbey had discharged their duty towards their employees and were not re- sponsible for the injury to B. — Judgment of the Court of Appeal (22 B C. Rep. 241), reversed, Idington and Brodeur, JJ., dis- senting. Western Canada Power Co. v. Bergklint, liv., 285. 23. Negligence — Mining operations — Con- tract for special works — Engagement by con- tractor — Control and direction of mine — Defective machinery — Notice — Failure to remedy defect — rLiability for injury to miner, xxxiv., 177. See Negligence. 24. Defence of common employment — Plea by Crown — Workmen's Compensation Act, xxxvi., 462. See Emplotek and Employee. 25. Negligence — Railways — Breach of statutory duty — Common employment — Nova Scotia Railway Act, R. S. N. S. (1900) c. 99, s. 251 — Employers' Liability Act — Fatal Injuries Act, xxxix., 593. See Negligence. 26. Negligence of fellow servant — Opera- tion of railway — Defective switch — Publio work — Tort — Liability of Crown — Right of action — Exchequer Court Act, xl., 229. See Negligence. 661 MASTEE AND SERVANT. 663 27. Negligence — Injury to workman — Lia- bility of employer — Oommon fault. Domin- ion Bridge Vo. v. Jodoin, xlvi., 624. 28. Negligence — Answers ly jury — " Volenti non fit injuria " — Issue undecided — Practice — B. G. Supreme Court Rules, 0. 58, r. 4— New Trial, xlix., 43. See New Teial. 29. Negligence — Dangerous works — Elec- tric transmission line — Independent contrac- tor — Master and servant — Strengthening poles — Stringing wires — Injury to linesman — Bisk of employment — Responsibility of owner, xlix., 423. See Negligence. 30. Negligence — Dangerous works — Elec- tric transmission line — Independent contrac- tor — Strengthening poles—Stringing wires — Injury to linesman — Risk of employment — Responsibility of owner, xlix., 428. See Negligence. 31. Railways — Operation — Transfer of cars — Interswitching — Negligent coupling — Duty of train crew — Scope of employment — Employer's liability — Jury — Findings of fact —Evidence, I, 3&3. See Railways. 32. Negligence— Operation of tramway — Employers' liability — Accident in course of employment — " Workmen's Compensation Act " — Right of action — Dependent rela- tions — Construction of statute — (Que.) 9 Edw. VII., c. 66, ss. S, 15— R. S. Q., 1909, arts. 1S21, 73S3, tSSS-Incompatible enact- ment — Repeal — Art. 1056 C. G. — Practice — Charge to jury — Misdirection — Excessive damages — Modification of verdict -^ New trial— Art. 503 G. P. Q., 1., 423. See Negligence. 33. Government railway regulations — Operation of trains — Negligent signaling — Fault of fellow servant — Common fault — Boarding moving train — Disobedience of employee — Voluntary exposure to danger — Cause of injury— R. S. G.. 1906, c. 36, ss. Il9, .i-'i — Negligence — Raihi-ay. li., 588. (c) Contributory Negligence. 34. Negligence — Employer and employee — Disobedience of orders — Dangerous way, works and appliances'} — ^Where a foreman has given the necessary orders to ensure the safety of a workman engaged in danger- bus work, an employee who disobeys such orders and in consequence, sustains injuries, cftnnot hold his employer responsible in dam- ages on the ground that the foreman was bound to see that the orders were not dis- obeyed. Lamoureux v. Fournier dit Larose (33 Can. S. C. R. 675) discussed and dis- tmgnished. Royal Electric Go. v. Paquette, XXXV., 202. 35. Negligence — Injury to employee — Dis- obedience_ — Enforcing rules of factory — Ver- dict against weight of evidence — Misdirec- tton—New trial— Costs.} — In an action for compensation for injux-ies sustained by K. while employed in a factory the jury found that the company was at fault for laxity in the enforcement of its regulations made to secure the safety of employees and that K. contributed to the accident which occasion- ed his injuries by disobedience to orders given to him in pursuance of those regula- tions. The jury estimated K.'s damages at $3,500, and deducted $2,000 on account of the fault attributed to him, and returned a verdict against the company for $1,500, on which judgment was entered. It was con- tended that the jury had been misdirected by the trial judge and that the findings and verdict were against the weight of evi- dence. The judgment appealed from (Q. R. 36 S. _ C. 425) was set aside and a new trial directed, without costs. Canadian Rub- ber Co. V. KaravoMris, xUv., 303. 36. Negligence — Electric plant — Defective appliances — Electric shock— Engagement of skilled manager — Contributory negligence, xxxiv., 215. See Negligence. 37. Negligence — -Finding of jury — Volenti non fit injuria, xxxv., 452. See Negligence. 38. Negligence — Employer's Liability Act -^Defective ways, works, etc. — Care in mov- ing cars — Contributory negligence, xxxv., 517. See Employee and Employee. 39. Employer and employee — Compensa- tion for injury — Contributory negligence — Construction of statute — " Workmen's Com- pensation Act " — 2 Edw. VII. c. Hi, s. 2 — ■ Remedial legislation — Refusal of damages — Right of appeal— Evidence, xliv., 106. See Workmen's Compensation Act. 40. Negligence — Employer and employee — Dangerous work — Dangerous materials — Risk of employment — Warnings and in- structions — Employer's liability — Damages — Limitation of action — Construction of statute— " Railway Act," R. S. G. 1906, c. 37, s. 306 — " Construction and operation " of railway.} — Where instructions and warning are necessary to enable employees, in cir- cumstances involving danger, to appreciate and protect themselves against the perils incident to the work in which they are en- gaged, it is the duty of the employer to take reasonable care to see that such instruc- tions and warnings are given. The employer may delegate that duty to competent per- sons, but, where compensation is soustt for injuries sustained by an employee owing to neglect to give such instructions and warn- ing, the onus rests upon the employer to shew that the duty was delegated to a per- son qualified to discharge it or that other adequate provision was made to ensure pro- tection against unnecessary risk to the em- ployees. The failure of the employer to take reasonable care in the appointment of a properly qualified superintendent, to whom the duty of selecting persons to be employed is entrusted, amounts to negligence involv- ing liability Cor damages sustained in con- 663 MASTER AND SERVANT. 664 sequence of the acts of incompetent servants. Young v. Hoffman, Manufacturing Go. ((1907) 2 K. B. 646) applied; judgment appealed from (21 Man. R. 121) affirmed. In this case, as the risk incident to the em- ployment of an incompetent foreman was not one of those which are assumed by an employee, the plaintiff was entitled to re- cover damages at common law. Judgment appealed from (21 Man. R. 121) reversed. — The limitation of one year, in respect of actions to recover compensation for injuries sustained " by reason of the construction or operation " of railways, provided by sec- tion 306 of the "Railway Act" (R. S. C. 1906, c. 37), relates only to injuries sus- tained in the actual construction or opera- tion of a railway, it does not apply to cases where injuries have been sustained by em- ployees engaged in works undertaken by a railway company for procuring or prepar- ing materials which may be necessary for the construction of their railway. Canadian Northern Railway Co. v. Robinson ( [1911] A. C. 739) applied, judgment appealed from (21 Man. R. 121) affirmed. (Leave to ap- peal to Privy Council refused, 20th March, 1912.) Canadian Northern Railway Co. v. Anderson, xlv., 355. 41. Negligence — Mining operations — Con- tract for special works — Engagement ty con- tractor — Control and direction of mine owner — Defective machinery — Notice — Fail- ure to remedy defect — ■Liability for injury sustained by miner.] — The sinking of a winze in a mine belonging to the defend- ants was let to contractors who used the hoisting apparatus which the defendants maintained, and operated by their servants, in the excavation, raising and dumping of materials, in working the mine under the direction of their foreman. The winze was to be sunk according to directions from de- fendants' engineer and the contractors' em- ployees were subject to the approval and direction of the defendants' superintendent, who also fixed the employees' wages and hours of labour. The plaintiff, a miner, was employed by the contractors under these conditions, and was paid by them through the defendants. While at his work in the wmze the plaintiff was injured by the fall of a hoisting bucket which happened in con- sequence of a defect in the hoisting gear, which had been reported to the defend- ants' master-mechanic and had not been remedied. — Held, affirming the judgment ap- pealed from (10 B. C. Rep. 9) Taschereau, O.J., dissentmg, that the plaintiff was in common employ with the defendants' ser- vants engaged in the operation of the mine and that even if there was ?i neglect of the duty imposed by statute, in respect to in- spection of the machinery, as the accident occurred in consequence of the negligence of one of his fellow-servants the defendants were excused from liability on the ground of common employment. Hastings r. Le Roi No. 2, xxxiv., 177. (d) Dangerous Material, Plant, Way and Works. 42. Dangerous way, works, etc. — Negli- gence — Workmen's Compensation Act — Evi- dence.]— M. proprietor of iron works, had built an engine in the course of business, and while it was standing on a railway track in the workshop a heavy dray stand- ing near, owing to the horses attached be- ing startled, was thrown against it whereby it was overturned and killed a workman at a bench three or four feet away. On the trial of an action by the administratrix of the workman's estate the jury found that the accident was due to the negligence of M. in not having the engine properly braced. — Held, that this finding was justified by the evidence, and M. was liable under the Work- men's Compensation for Injuries Act, R. S. O. [1897] c. leO.— Held, also, that the accident did not occur through a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or prem- ises connected with, intended for or used in the business of the employer. Miller v. King, xxxiv., 710. 43. Negligence — Dangerous works — Knowledge of master — Employers' liability.] — ^T., an employee in a mill, entered the elevator on the second floor, to go down to the ground flour, and whUe in it the elevator fell to the bottom o£ the shaft and T. was injured. On the trial of an action for dam- ages it was proved that the elevator was over twenty years old ; that it had fallen before on the same day owing to the drop- ping out of the key of the pinion gear which had been replaced ; and the jury found that the vibration and general dilap- idation of the running gear caused the key again to fall out occasioning the accident. On appeal from the judgment of the Court of Appeal maintaining the verdict for the plaintiff: — Held, Nesbitt, J., dissenting, that the company was negligent for not ex- ercising due care in order to have the elevator in a safe and proper condition for the necessary protection of its employees and was, therefore, liable at common law. — Held, per Nesbitt, J., that as the company had employed a competent person to attend to the working of the elevator it was not liable at common law for his negligence, al- though it was liable under the Employers' Liability Act. Canada Woollen Mills v. Traplin, xxxv., 424. 44. Negligence — Employers' Liability Act — Defect in ways, works, etc. — Care in mov- ing cars- — Contributory negligence.] — O., a workman in the employ of the defendant company, was directed by a superior to cut sheet iron and to use the rails of the com- pany's railway track for the purpose. The superior offered to assist, and the two sat on the track facing each other. O. had his back to two cars standing on the track to which, after they had been working for a time, an engine was attached which back- ed the cars towards them, and O. not hear- ing or seeing them in time wa.rkings — ■ Encroachment — Trespass — Onus of proof.] — To justify an encroachment in the eixercise of the right, under the British Columhia "Mineral Act, 1891" (54 Vict. c. 25) of following and exploiting a mineral vein extralaterally be- yond the vertical plane of the side-line of the location within which it has its apex, the owner of the apex must prove the identity and continuity of the vein from such apes to his extralateral workings. In the present case, as the appellants failed to discharge the onus thus resting upon them, the judg- ment appealed from (13 B. O. Rep. 234) was affirmed. B. N. White Co.- v. Star Uining'd Milling Co., xli., 377. 21. Mining agreement — Interest in ore to be mined — After-acquired chattels — Transfer and delivery — Registration — B. C. "Bills of Sale Act," 1905 — •Construction of statute.] — An agreement creating an equitable in- terest in ore to be mined is not an instru- ment requiring registration under the pro- visions of the British Columbia "Bills of Sale Act," 5 Edw. VII. c. 8. — Judgment appealed from (14 B. C. Rep. 183) affirmed. Traves v. Forrest, xlii., 514. 22. Mining Act — Grant of mining land — Reservation of pine timber — Right of gran- tee to cut for special purposes — -Trespass — Cutting pine — Right of action.] — The On- tario Mining Act, R. S. O. [1897] c. 36 as amended by 62 Vict. c. 10, s. 10, provides in s. 39, s.-s. 1, that "the patents for aU Crown lands sold or granted as mining lands shall contain a reservation of all pine trees stand- ing or being on the lands, which pine trees shall continue to be the property of Her Majesty, and any person holding a license to cut timber or saw logs on such lands may at all times, during the continuance of the license, enter upon the lands and cut and remove .such trees and make all necessary roads for that purpose." By the other pro- visions of the section, the patentee may cut and use pine required for necessary building, fencing and fuel and other mining purposes and remove and dispose of what is required to clear the land for cultivation, but for any cut except for such buUding, fencing . and other mining purposes he shall pay Crown dues. — Held, Idington and Duff, JJ., dissent- ing, that a patentee and a lessee of mining lands who had taken possession thereof, but were no^ at the time of the trespasses com- plained of in actual physical possession, have, notwithstanding such reservation, or exception, such possession of the pine trees, or such an interest therein, as would entitle them to maintain actions against a tres- passer cutting and removing them from the land. Glenwood Lumber Co. v. Phillips ([1904] A. C. 405) foUowed; Casselman v. Hersey (32 U. C. Q. B. 333) discussed.— In this case the defendants cut and removed the pine timber from plaintiffs' mining lands without license from the Crown, but claimed that they subsequently acquired the Crown's title to it and should be regarded as licensees from the beginning. — Held, Id- ington and Duff, JJ., dissenting, that as- suming that the Crown could after the trees had been cut and removed, take away by its act the plaintiffs' vested right of action the evidence shewed that defendants were cut- ting on adjoining Crown land as well as on plaintiff's locations and did not clearly establish that any title acquired by defend- ants included what was cut on the latter. National Trust Go. Limited v. Miller; Schmidt v. Miller, xlvi., 45. 23. Removal of ore — Boundary — Copy of plan — Evidence — Falsa demonstratio. Nova Scotia Steel Go. v. Bartlett, Cout. Cas. 268. 24. Placer mining regulations — Staking claims — Overlapping locations — Abandoned claims. Miller v. Campbell, Cout. Cas. 280. ' 25. Negligence — Mining operations — Con- tract for special works — Engagement by con- tractor — Control and direction of mine — De- fective machinery — Notice — Failure to rem- edy defect — Liability for injury to miner, xxxiv., 177. See Negligence. 26. Appeal — Discretion of court below — Amendment — Formal judgment — Mining regulations, xxxiv., 279. See Appeal. 681 MINORITY. 682 27. Commissioner of Mines — Appeal from decision — Q'4ashing appeal — Final judgment — Estopp'elr— Mandamus — Appropriate rem- edy, xkiiv., 328. See Appeal. 28. Praotice — Pleading — Condition prece- dent — Construction of statute — 59 Vict. c. 62, ss. 9, 25 (B.C.) — Mineral claim — Expro- priation — Watercourses — Waterworks — Trespass — Damages — Waiver — Injunc- tion, XXXV., 309. See ExpEOPBiATiON. 29. Title to land — Sale of mineral rights — Litigious rights — Champerty, xxxv., 327. See Title to Land. 30. Crown lands — Mining lease — Trespass ■ — Conversion — Title to land — Evidence — De- scription in grant — Plan of survey — Certi- fied copy, xKxv., 527. See Title to Land. 31. Vendor and purchaser — Sale of mining locations — Consideration in lump sum — —Separate valuations — Misrepresentation — Deceit and fraud — Measure of damages, xxxvi., 279. See Vendob and Puechasee. 32. Title to land — Plan of survey — Evi- dence — Onus of proof — Findings of jury — • Error — New trial, sxxviii., 336. See New Tbial. 33. Negligence — Accident m mine — Fall of rock — Covering of shaft — Fellow servant, Temiskaming Mining Co. v. Siven, xlvi., 643. 34. Company — 'Subscription for shares — Misrepresentation — Action for calls — Charge to jury — Misdirection — Oijection — Pleading. Boechk V. Gowganda Mines, xlvi., 645. 35. Powers of company — 'Sale of shares — Security ly mortgage — Subsequent creditor — Status — Jurisdiction — Foreclosure. Hughes v. No. Blec. & Mfg. Go., 1., 626. See iCJompant. 36. Deed of land — Reservation — Right of passage — Changed conditions — Object of con- veyance. Can. Cement v. Fitxgerald, liii., 263. See Easement. — Forfeiture — Right of lessees — Procedure on inquiry — Judicial duties of arbiter, xl.. 281, 294. See Mines and Mining. MINISTER OF THE OROW^N. 1. B. C. "Crown Procedure Act" — Refusal to submit petition of right — Tort — Right of action — Damages, xSxix., 202. See Action. _ 3. Mines and minerals — Hydraulic regula- tions — Application for mining location — Duties imposed on Minister of the Interior — Status of applicant -'—Vesied rights — Con- tract binding on the Vrown, xl., 258. See Mines and Mining. 3. Mining regulations — Hydraulic lease — Breach of conditions — Construction of deed MINORITY. 1. Action against minor — Exception of minority — Practice — Irregularity in proce- dure — Waiver after majority — Ratification — Prejudice — Nullity — Review by appellate court— Arts. 2J,G, 250, 304, S20, 323, 324, 987 0. C.—Arts. IS, Itk, 116, 1039, 1263 C. P. Q.] — An action for. damages esr delicto was instituted against a minor without impleading a tutor to assist Mm, and the exception of minority was set up. Proceed- ings taken iby the plaintifE to have a tutor appointed had not been concluded when the defendant became of age and an order, which was disregarded by the defendant, was then obtained requiring him to plead to the action. On a summons for his examina- tion sur faits et articles, defendant appeared and certain objections to questions were made by counsel on his behalf. On an in- scription for judgment ex parte, subse- quently filed, judgment was entered against him. — Held, per. Idington, Duff and Bro- deur, JJ., that irregularities of procedure in a court of first instance are matters to be dealt witli by the judges of that court and, unless some prejudice has resulted there- from, the discretion exercised by such judges in respect thereto ought not to be disturbed by an appellate court. — Per Idington, Duff and Brodeur, JJ., Fitzpatrick, C.J., and Anglin, J., contra. — In the circumstances the defendant suffered no prejudice within the meaning of article 174 of the Code of Civil Procedure. The exception resulting from minority is relative merely and may Be waived by a defendant, sued during his minority, without the necessary assistance required by law, appearing after attaining majority and taking objections to subsequent proceedings in the action. He cannot, there- after, complain of being treated as a defend- ant properly cited before the court nor of a judgment ex parte entered against him therein. — Per Idington, Duff and Brodeur, JJ. — Irregularity in inscription for judg- ment ex parte is not a reason for the dis- missal of an action. — Per Fitzpatrick, C.J., and Anglin, J., dissenting. — ^The fact that the defendant was a minor at the time of the institution and service of the action and that no tutor or curator was made a party to the suit for the purpose of assisting him therein constitutes an absolute bar to the action which could not be validated in con- sequence of further proceedings therein, after the defendant attained the age of majority. The action was a nullity ab initio and, con- sequently, the defendant suffered prejudice within the meaning of art. 174 C. P. Q. Larue v. Poulin (9 Que. P. R. 157) ; Fair- banks V. Howley (10 Que. P. R. 72), and Robert v. Dufresne (7 Que. P. R. 226), re- ferred to. Serling v. Levine, xlvii., 103. 2. Contract — Promissory note — Security for debt — Husband and wife — Parent and child — Pressure, xxxv., 393. See Conteact; Parent and Child. 6S3 MISTAKE. 684 MISDIRECTION. Operation of railway — Yard siding — Slop- ing station platform — Private passage — Dangerous way — Negligence — Procedure at trial — Oljections to charge to jury — Prac- tice.']— 'Where, on a specific objection to his charge, the trial judge recalled the jury and directed them as requested, the contention that the directions thus given were erroneous should not he entertained on appeal. ( Leave to appeal to Privy Council was refused.) Canadian Pacific By. Co. v. Bansen, xl., 194. And see Jury; New Trial. MISREPRESENTATION. Sale of land — Deceit — Contract — "War- ranty. Bridgeman v. Seplurn, xlii., 228. See Saie op Land. See Fraud. MISTAKE. 1. Agreement for delivery of hands — Mis- take in deed.] — In the action by the cor- poration against the railway company, _ a reference was made to the master to decide the ownership o£ certain bonds of which Burke, one of the defendants, had become purchaser at a judicial sale in the course of litigation between the appellants and the respondent. They had executed an agree- ment providing that, on payment of $5,000, the price of adjudication, and a judgment for $67,000 against Ritchie, the _ bonds should be transferred to him. Ritchie con- tended that only $5,000 was to be paid, and that after he had signed the agreement he discovered the mistake in its provision for payment of the larger sum. The master decided that Kitchie was entitled to the bonds upon payment of the smaller sum. His ruling was reversed by Meredith, C.J., but was restored by the judgment of the Court of Appeal. — Held, reversing the judg- ment appealed from, that upon a correct view of the' evidence, the judgment of Mere- dith, C.J., was right and should be restored. BurJce v. Ritchie, Cout. Cas. 365. 2. Crown — Banks and tanking — Forged cheques — Payment — Representation ty drawee — Implied guarantee — Estoppel — Acknowledgment of tank statement — lAatil- ity of endorsers — Mistake — Action — Money had and received.'] — ^A clerk in a depart- ment of the Government of Canada, whose duty was to examine and check its account with the Bank of Montreal, forged depart- mental cheques and deposited them to his credit in other banks. The forgeries were not discovered until some months after these cheques had been paid by the drawee to the several other banks, on presentation, and charged against the Receiver-General on the account of the departfhent with the bank. None of the cheques were marked with the drawee's acceptance before pay- ment. In the meantime, the accountant of the department, being deceived by the false returns of cheeking by the clerfk, acknowledged the correctness of the state- ments of the account as furnished by the bank where it was kept. In an action by the Crown to recover the amount so paid upon the forged cheques and charged against the Receiver-CfenersJ : — Held, affirming the judgment appealed from (11 Ont. L. R. 585) , that the bank was liable unless the Crown was estopped from setting up the forgery. Per Davies, Idington and Duff, JJ., that estoppel could not be invoked against the Crown. Per Girouard and Maclennan, JJ., that, apart from the question of the Crown being subject to estoppel, under the cir- cumstances of this case, a private person would not have been estopped had his name been forged as drawer of the cheques. Held, per Davies and Idington, JJ. The acknowl- edgment by the accountant of the department of the correctness of the statements furn- ished by the bank, being made under a mis- take as to the facts, the accounts could be re-opened to have the mistake rectified. — The defendant bank made claims against the other banks, as third parties, as in- dorsers, or as having received money paid by mistake, for the reimbursement of the several amounts so paid to them, respec- tively. On these third party issues, it was held: — Per Girouard and Maclennan, JJ. — The drawee, having paid the cheques on which the name of its customer was forged, could not recover the amounts thereof from holders in due course. Price v. Neal (4 Burr 1355) followed. — Per Davies and) Idington, JJ. — ^As the third party banks re- lied upon the representation that the cheques on which the name of its customer applied from their payment on presentation, and subsequently paid out of the fund^ to their depositor or on his order, the drawee was estopped and could not recover the amount so paid from them, either as indorsers or as for money paid to them under mistake. — In the result, the judgment appealed from (11, Ont li. R. 595) was affirmed. (Leave to appeal to Privy Council refused. 31st July, 1907.) Bank of ~ Montreal v. The King, xxxviii., 258. 3. Trust — Company law— Extra remuner- ation — tlltra vires act of directors — Ratifir cation — Recovery of moneys illegally paid- Mistake of law.] — By a resolution of the directors, the secretary of the company had been authorized to sell the company's bonds, for which he was to be paid a commission at the rate of 5 per cent, on the amounts received. Subsequently, at a time when they had no authority to do so, the direct- ors converted the preferred stock held by certain shareholders into bonds, and paid the secretary for his services in making the conversion at the rate of 5 per cent, on the amount of bonds thus disposed of. In an action to recover back from the secre- tary the moneys so received by him as commission : — Held, that, although the sec- retary had received the commissions under mistake of law, yet, as he must be assumed to have had knowledge of the illegality of the transaction, the moneys could be re- covered back by the company. Subse- quently the scheme of conversion was ap- proved of by a resohition of the share- holders, but it did not appear that they had been fully informed as to the arrange- ment for the payment of a commission to the secretary in that respect, in addition 685 MONOPOLY. 686 to his regular salary. — Beld, that the resolu- tion of the shareholders had not the effect of ratifying the payment of the commissions. Rovntree v. Sydney Land and Loan Co., xxxix., 614. 4. Municipal corporation — Citi/ and county — Separation' — Agreement as to assets — Subsequent discovery of funds not in- cluded—Action for city's share — Accord.} — In 1901 the Town of Woodstock was in- corporated as a city, and in February, 1902, the city and the County of Oxford entered into an agreement, ratified by their re- spective by-laws, purporting to settle all questions between them arising out of tho erection of the town into a city. This agreement was acted upon until December, 1907, when the city, claiming to have dis- covered the existence of a fund of $37,000, collected from the ratepayers of the several municipalities composing the county, which had not been considered in the settlement, brought action for its share of said fund, but did not ask for rescission or modifica- tion of the agreement. — Held, affirming the judgment of the Court of Appeal (22 Ont. L. E. 151), that in the absence of fraud or mutual mistake the agreement was a bar to such action. Woodstock v. Oxford, xliv., 603. 5. Vendor and purchaser — Sale of lands — Misrepresentation — Fraud — Error — Res- cission of contract — Sale or exchange — Da- tion en paiement — - Improvements on pro- perty given in exchange — Option of party aggrieved — Action to rescind — Actio quan- tum minoris— Latent defects — Damages — Warranty — Agreement in writing — Formal deed, xxxiv., 102. See Vendor and Pukchaser. 6. Misrepresentation — Lay agreement — Mortgage — Execution of documents hy il- literate persons — Evidence, xxxv., TlO. See CONTEACT. 7. Mutual life insurance — Natural pre- mium system — Levet premium — Mortuary calls — Rate of assessment — Rating at at- tained age — Fraud — Puffing statements — Warranty — Misrepresentation — Acquies- cence — Rescission of contract — Estoppel XXXV., 330. See Insurance, Life. 8. Mines and mining — Vendor and pur- chaser — Sale of mining locations — Consid- eration in lump sum — Separate valuations — Misrepresentation — Deceit and fraud — Meas- ure of damages, xxxvi., 279. See Vendor and Ptorohaser. 9. Practice — Revising minutes of judg- ment — Costs of abandoned defences — Refer- ence to trial judge, xxxviii., 103. " See Practice. 10. Banks and hanking — Forged cheque — Negligence — Responsibility of drawee — Pay- ment — Indorsement — Implied warranty — Principal and agent — Action — Money had and received — Change in position — Laches', xl., 366. See Banks and Banking. 11. Ships and shipping — Material used in construction — Sale of goods — Contract — Principal and agent — Misrepresentations — Conversion — Trover — Evidence — Misdirec- tion—New trial — Ship's husband — Pledging credit of owners — Necessary outfitting at home port, Cout. Cas., 131. See Ships and Shipping. MISTRIAI,. Jury trial — Judge's charge — Practical withdrawal of case — Evidence — New Trial, xxxviii., 165. See New Trial. MITOYENNETE. See Party Wall. MONOPOLY. 1. Contract — Public policy — Restraint of trade — Combination — Conspiracy — Con- struction of statute — "Criminal Code" s. i98 — Words and phrases — "Unduly" pre- venting competition, etc.'i — A contract be- tween dealers fixing prices to be paid by them for specified articles or commodities which may be the subject of trade and com- merce with the object of restricting com- petition and establishing a monopoly therein, constitutes an agreement unduly to prevent or lessen competition within the meaning of section 498 of the Criminal Code, R. S. C, 1906, ch. 146, and is not enforceable between the parties. Judgment appealed from (20 Man. R. 178) reversed, Davies, J., dissenting. — Per Davies, J., dissenting. — As the agreement was not, in the circum- stances, void at common law as being un- reasonably in restraimt of trade it did not violate the statute. Weidman v. Shragge, xlvi., 1. 2. Toll-bridge — Infringement of privilege — Exclusive limits — Future rights, xxxvi., 26. See Tolls. 3. Construction of statute — Toll-bridge — Franchise — Exclusive limits — Measurement of distance — Encroachment — 58 Geo. III. c. 20 (L. C), xxxvi. 224. See Franchise. 4. Constitutional law — Inter-provincial and international ferries — Establishment or creation of ferries — License — Franchise — Exclusive rights — Powers of Parliament — Orders in Council — Dominion Acts in rela- tion of ferries, xxxvi., 206. See Ferries. 5. Waterworks — Statutory contract — Ex- clusive franchise — Conditions of defeasance — Forfeiture of monopoly — Demurrer — Right of action by municipality — Rescission- -Art. 1065 C. C.—JfO Vict. c. 68 {Que), xl., 629. See Action. 687 MORTGAGE. 68S MOKTGAGE. 1. Equitable mortgage — Mines and mining — Lease of mining lands — Sheriff's sale — I'urchase iy judgment creditor of mortgagee —Registry laws — Priority — Actual notice — Lien for Crown dues paid as rent — C. 8. N. B. c. 30, s. 139.]— The courts below (37 N. B. Rep. 140 ; 3 N. B. Eq. 28) held that mining leases of lands in the Province of New Brunswick and of the minerals therein, issued by the Crown to the appel- lant subsequent to a mortgage executed by it in tte State of New York in favour of the respondent, a company incorporated under the laws of that state, whith do not reserve the minerals to the state, were sub- ject to the mortgage; that a judgment creditor of the mortgagor (who purchased the leases at a sherifE's sale in execution of his own judgment and afterwards ob- tained new leases in his own name from the Crown), took the new leases subject to the mortgage ; that the mortgage, though not registered under the "General Mining Act," C. S. N. B. (1903), ch. 30, sec. 139, was not void as against a judgment creditor who had actual notice of the mortgage ' and whose judgment was not registered under that section at the time of the commence- ment of the suit, and that the judgment creditor was not entitled to a prior lien for rent paid to the Crown on the licenses declared to be held in trust for the mort- gagee. An appeal to the Supreme Court of Canada was dismissed. Maclennan, J., dis- senting. Mineral Products Go. v. Contin- ental Trust Co., xxxvii., 517. 2. Money advanced to construct buildings — Lien for materials supplied — Payment to contractor — Transactions in fraud of mort- gagor's rights — Redemption — • Costs.} — A building and loan company advanced money to an illiterate woman for the purpose of aiding in the construction of a house to be erected upon lands mortgaged to it to se- cure the loan. The mortgage contained no provision for advances to contractors, etc., as the work progressed, beyond the. follow- ing : "And it is hereby agreed between the parties hereto, that the mortgagees, their successors and assigns, may pay any taxes, rates, levies, assessments, charges, moneys for insurance, liens, costs of suit, or mat- ters relating to liens or incumbrances on the said lands, and solicitors' charges in connection with this mortgage, and valu- ator's fees, together with all costs and charges which may be incurred by taking proceedings of any nature in case of default by the mortgagor, her heirs, executors, ad- ministrators or assigns, and shall be pay- able with interest, at the rate aforesaid, until paid and, in default, the power of sale hereby given shall be forthwith exerciseable. And it is further agreed that monthly in- stalments in arrear shall bear interest at the rate aforesaid until paid." — ^In a suit for redemption. — Held, first, that the clause in the mortgage did not justify the mort- gagees in making advances to contractors and persons supplying material without the express order of the mortgagor. Secondly, that the mortgagees ought not to have re- cognized an order in favour of the contrac- tor for the total amount oE the loan when they knew that the contractor had not com- pleted bis contract and was, therefore, not entitled to the money when the order con- tained no name of a witness, and shewed that the mortgagor was unable to sign her name. — The payment having been made by the loan company to a lumber company supplying material to the contractors for the building, without the express authority of the mortgagor, and the lumber company having taken an assignment of the mortgage, and attempted to enforce it against the mortgagor, the transaction was declared fraudulent as against the mortgagor, and the payment to the lumber company disallowed. — Held, also, that the only costs the as- signees of the mortgage were entitled to add to the mortgage debt were the costs of an ordinary redemption suit consented to by a mortgagee.—Judgment appealed from varied, and appeal dismissed with costs. Black V. Hiebert, xxxviii., 557. 3. Assignment by mortgagor for benefit of creditors — Priorities — Assignment of claims of execution creditors — Redemption — Assign- ments and Preferences Act, s. 11 (On*.)] — After judgment for foreclosure of mortgage or redemption judgment creditors of the mortgagor with executions in the sheriff's hands were added as parties in the master's office and proved their claims. The master's report found th^t they were the only incum- brancers and fixed a date for payment by them of the amount due to the mortgagees. After confirmation of the report S. obtained assignments of these judgments and was added as a party. He then paid the amount due the mortgagees, and the master took a new account and appointed a day for pay- ment by the mortgagor of the amount due S. on the judgments as well as the mort- gage. This report was confirmed and, the mortgagor having made an assignment for benefit of creditors before the day fixed for redemption, an order was made by a judge in chambers adding the assignee as a party, extending the time for redemption and re- ferring the case back to the master to take a new account and appoint a new day. — Held, affirming the judgment of the Court oE Appeal (13 Ont. L. R. 127), that under the provisions of sec. 11 of the Assignments and Preferences Act the assignee of the mort- gagor could only redeem on payment of the total sum due to S. under the mortgage and the judgments assigned to him. Scott v. Sioanson, xxxix., 229. 4. Manitoba "Real Property Act," — Power of sale — Special covenant — Notice — Statu- tory supervision — Registered title — Equit- able rights — Possession by mortgagee — Limitation of action — Construction of statute, R. 8. M., 1902, c. 148, s. 75— "Real Property Limitation Act," R. 8. G. 1902, c. 100, |. 20.] — In respect of lands sub- ject to the operation of the "Real Property Act, R. S. M., 1902," ch. 148, mortgagees have no registered interest, but merely ob- tain powers of disposing thereof ; these pow- ers do not vest as incidental to the estate mortgaged, but are efficacious only by virtue of the statute. Where the mortgage stipu- lates for a power of sale, on default, with- out notice, and contains no proviso dispens- ing with the official supervision required by 689 MORTGAGE. 690 the statute, a sale by the mortgagee, pur- porting to be made under that power, with- out compliance with the requirements of section 110 of the Act or an order of the court, cannot operate to extinguish the reg- istered title of the mortgagor. — ^Judgment ap- pealed from (20 Man. R. 522) affirmed, Idington and Anglin, JJ., dissenting. — Per Davies, Duff and Brodeur, JJ., affirming the judgment appealed from (20 Man. R. 522). — The registered title of mortgagors in lands subject to the operation of the "Real Property Act," R. S. M. 1902, ch. 148, and of persons claiming through them, are protected by the provisions of the 75tb section of that statute denying the acquisi- tion of title adverse to or in derogation of that of the registered owner of such lands by length of possession only ; the limita- tion provided by section 20 of the "Real Property Limitation Act," R..S.M., 1902, ch. 100, in favour of mortgagees, has no application to lands after they have been brought under the "Real Property Act." Smith and National Trust Co., tIv., 618. 5. Bills and notes — Collateral security — Recovery on mortgage — New evidence dis- covered after reference to take accounts — Appeal to Supreme Court — Lapse of time.] ■ — The action was to recover on a covenant in a mortgage for the payment of money and interest alleged to be due to the plain- tiff under the mortgage which purported to secure $2,800 with interest. As to the mortgage the question involved was whether or riot the plaintiff could claim re-payment of $1,000 paid, some time after the mort- gage was executed, to retire a promissory note, made by the defendant and indorsed by the plaintiff, and which was in part re- newal of a similar note which had been so made and indorsed prior to the mortgage. The defence was that the note was given for the purpose of raising funds for the use of a partnership, which the trial judge found existed between the plaintiff and the defendant. The defendant contended that not only was the mortgage given to secure the note, but also that he was not per- sonally liable to repay the $1,000 to the plaintiff. By the plaintiff it was con- tended that the mortgage was given, amongst other things, to secure him against liability on the note in question. — ^The trial judge held that the note had been indorsed by ,the plaintiff for the accommodation of the defendant, and that the mortgage had been given to secure the plaintiff in respect of the note, and he directed a reference to the master to take accounts. This decision was affirmed by the Court of Appeal,. Per- due, J., dissenting. — ^During the taking of accounts the defendant discovered a statu- tory declaration by the plaintiff to the effect, amongst other things, that the full amount of the mortgage had been advanced by him to the defendant and that it had been taken for the purpose of securing the advance so made and not as collateral se- curity. In these circumstances the court appealed from, in pursuance of section 71 of the "Supreme Court Act," granted spe- cial leave for the present appeal, although It had not been brought within the time pre- scribed by the Act. — After hearing coun- sel on behalf of the appellant, and without calling upon counsel for the respondent for any argument, the appeal was dismissed with costs, the court not being satisfied that the judgment appealed from was so clearly wrong that it should be reversed. Jukes V. Fisher, xlvii., 404. 6. Company law — Powers of company — Sale of shares iy company — Subsequent creditor — -Status.] — Three directors owned all the stock of a mining company to which they had advanced $43,000 for expenses of operating. Two of them were at variance with the third as to the mode of operating and all refused further advances. The company having no other means of procuring money, it was agreed that the two directors should sell their stock to the third for $60,000 secured by mortgage on the company's pro- perty, the debt of $43,000 to be discharged and the purchasing director to advance funds for operating, and until the first pay- ment had been made on the mortgage no such advances should be a charge on the company's property. Payments were made on the mortgage which aiterwards fell into arrears, and on action by the mortgagees an order was made for sale and delivery "up of possession." More than a year after the mortgage was made the mining company in- curred a debt to the respondent company which brought action for the amount and for a declaration that the mortgage was ultra vires of the company and that the judgment in the mortgage action was void. The action was dismissed at the trial. The Appellate Division held the mortgage void but only as to the excess over the in- debtedness of the company at the time it was made. — Held, reversing the judgment appealed from (31 Ont. L. R. 221) and re- storing that of the trial judge, Fitzpatrick, C.J., and Idington, J., dissenting, that the mortgage was valid ; that though the ex- pressed consideration was the price of the shares sold by one holder to another, the real consideration was the discharge of the com- pany's existing indebtedness and securing of financial aid for the future. — Per Davies, Duff and Brodeur, JJ. — The judgment in the foreclosure action was a conclusive answer to the attack on the mortgage by the company. The Great North-Western Railway Co. v. Charlehois ((1899) A. C. 114) distin- guished. — Also per Davies, Duff and Bro- deur, JJ. — ^The trial judge having in effect decided that he had jurisdiction to pass upon the validity of the mortgage, that decision was binding on all parties until reversed in appeal, and, having regard to what occurred at the trial, the decision on the point of jur- isdiction was not appealable. — Per Fitz- patrick, C.J., and Idington, J., dissenting. — The agreements and records made by the parties concerned in the transaction upon which alone the mortgage in question rests shew it to have been given solely to secure to the mortgagees the price of their sales of shares in the company to another share- holder and that, as such, the mortgage was ultra vires and void as against any creditors of the company. Hughes v. Northern Elec- tric <£- Manufacturing Co., 1., 626. 7. Payment hy instalments — .Arceleration clause — Payment of part postponed — Right of foreclosure] — A mortgage provided for 691 MOETGAGE. 692 payment in three annual sums of $2,500 each. There was a special provision that out of the last instalment the mortgagor could retain $1,000 until he received a con- veyance of the interest of an infant who, with the mortgagee, esecuted an agreement to convey when he became of age. There was also the acceleration clause making the whole amount due on default in paying any part. In an action to foreclose default hav- ing 'been made in payment of the first an- nual instalment. — Seld, afiirming the deci- sion of the Appellate Division (31 Ont. L. R. 471) , which maintained the judgment at the trial <30 Ont. L. R. 502), that the post- ponement of the time for payment of the $1,000, part oi the last instalment, did not disentitle the mortgagee to his remedy of foreclosing ; but held, varying the judg- ment below, that the acceleration clause in the mortgage did not apply to the $1,000, payment of which was positponed ; that the personal recovery against the mortgagor should not include this sum ; and that the judgment fcelow should be amended by pro- viding that .the proceedings should be stayed by payment into court of the balance. Thom- son V. Willson, li., 307. 8. Title to land — Vente a r- hestoa Mines v. Municipality of South Tiiet- ford, xli., 585. 64. Highways — Nuisance — Repair of side- icalks — 'Statutory duty — Negligence — Non- feasance — Personal injury — Civil liability — Right of action — Construction of statute — "Vancouver City Charter" — 6// T. c. 54, s. 219 (B.C.).] — Where a municipal corpora- tion is guilty of negligent default hy non- feasance of the statuitory duty imposed upon it to keep its highways in good repair, and adequate means' have been provided by stat- ute for the purpose of enabling it to perform its obligations in that respect {v.g., 64 Vict, c. 54 [B.C.]), persons suffering injuries in consequence of such omission, may maintain civil actions against the corporation to re- cover compensation in damages, although no such right of action has 'been expressly pro- vided for iby statute, unless something in the statute itself or in the circumstances in which it was enacted justifies the inference that no such right of action was to 'be con- ferred— Coe V. Wise (5 B. & S. 440; L. R. 1 Q. B. 711) and Mersey Docks Trustees v. Gilhs (L. R. 1 H. L. 93) applied. Muni- cipality of Pictou V. Geldert ([189S] A. C. 524) ; Municipal Council of Sydney v. Bourke ( [1895] A. C. 433) ; Sanitary Com- missioners of (Kbraltar v. Orfila (15 App. Cas. 400) ; Cowley v. Newmarket Local Board ([1892] A. C. 345) : Campbell v. City of Saint John (26 Can. S. C. R. 1) ; and City of Montreal v. Mulcair (28 Can. S. C. R. 458) distinguished. — Judgment appealed from (15 B. C. Rep. 367) affirmed.— Per Fitzpatrin- dants respondents on his appeal. — Held, that the plaintiff, respondent, was entitled to cross-appeal against the said defendants, respondents, to have the verdict against them at the trial restored. (Leave to ap- peal to Privy Council refused, 12th March, 1908). MoNichol v. Malcolm, xxxix., 265. 191. Overholding tenant — Trespasser — License — Master and servant — Injury to goods — Damages, xxxv., 494. 16. Lord Campbeli's Act. 192. Operation of railway — Unsafe road- bed — Speed of trains — Disobedience to or- ders — Ansicers by jury — "Lord Campbell's Act" — Injury sustained outside province — Right of action in Manitoba.] — At a curve in the permanent way there was a sink-hole, over which the roadbed had been recently constructed, where the weight of passing trains caused the tracks to be depressed, but trains running slowly had been safely oper- ated across the unsafe spot for several months. Orders had been given chat no trains were to be run over this place at greater speed than 5 miles per hour. The husband of plaintiff was engine-driver of a train which was run over the dangerous spot at a rate exceeding that indicated in the or- der and was derailed, causing injuries which resulted in his death. The accident hap- pened in the Province of Ontario and the action to recover damages was instituted in Manitoba. In answer to the question, " In what did such negligence consist?" the jury answered, "a defective roadbed, and not hav- ing provided a watchman for same." — Held, afiirming the judgment appealed from (24 ' Man. R. 807) , Idington and Brodeur, JJ., dissenting, that the answer returned by the jury was insufficient and vague ; that there was no reasonable evidence to support a finding that, assuming the order regulating speed of trains to be observed, the perman- ent way at the place in question was so dangerous as to make it negligence on the part of the railway company, vis-d,-vis de- ceased, to operate trains thereupon or that the cause of the accident was the state of the roadbed rather than the running of the train at excessive speed. — Per Idington, Duff and Brodeur, JJ. — A legal obligation ex delicto, arising in consequence of a fatal accident which happened beyond the terri- torial limits of the Province of Manitoba, may be enforced in the Manitoba courts where, according to the law in force in Manitoba, a similar right of action would have arisen if the accident had occurred within the province. Phillips v. Byre (L. R. 6 Q. B. 1) referred to. Lewis v. Grand Trunk Pacific Railway Co., lii., 227. 193. Operation of government railway — Dcfectice switch — Tort — Negligence of fel- low servant — Public work — Liability of Croicn — Right of action — Exchequer Court Act, xl., 229. 194. Right of action — "Lord Campbell's . Act" — Death by accident — Action by widow — Accord and satisfaction, xlix., 577. See Action. 17. Mines and Mining. 195. Mining operations — Contract for spe- cial works — Engagement by contractor — Control and direction of mine owner — Defec- tive machinery — Notice — Failure to remedy defect — Liability for injury sustained by miner.] — The sinking of a winze in a mine belonging to the defendants was let to con- tractors who used the hoisting apparatus, which the defendants maintained and oper- ated by their servants, in the excavation, raising and dumping of materials, in working the mine under the direction of their fore- man. The winze was to be sunk according to directions from defendants' engineer and the contractors' employees were subject to 767 NEGLIGEIsrCE. 76S the approval and direction of the defendants' superintendent, who also fixed the employees' wages and hours of labour. The plaintiff, a miner, was employed by the contractors un- der these conditions and was paid by them through the defendants. While at his work in the winze the plaintiff was injured by the fall of a hoisting bucket which happened in consequence of a defect in the hoisting gear that had been reported to the defendants' master-mechanic and had not been remedied. — Held, affirming the judgment appealed from (1 B. C. Rep. 9), Tasehereau, C.J., dissenting, that the plaintiff was in common employ with the defendants' servants engaged in the operation of the mine and that even if there was a neglect of the duty imposed by statute, in respect to inspection of the machinery, as the accident occurred in con- sequence of the negligence of one of his fel- low servants, the defendants were excused from liability on the ground of common em- ployment. Bastings v. LeBoi No. 2, xxxiv., 177. 196. Mining plans and surveys — Negli- gence of higher official — Duty of absent owners — Operation of metalliferous mines — Common law liability — Employers' Liability Act—B. 8. B. C. c. 69, s. 3.]— The provi- sions of the third section of the "Inspection of Metalliferous iSxines Act, 1897," of British Columbia, do not impose upon an absent mine owner the absolute duty of ascertaining that the plans for the working of the mine are accurate and sufficient and unless the mine owner is actually aware of inaccuracy or imperfections in such plans, he cannot be held responsible for the result of an acci- dent occurring in consequence of the neglect of the proper officials to plat the plans up to date according to surveys. — The defendant company acquired a mine which had been previously worked by another company and provided a proper system of surveys and operation and employed competent superin- tendents and surveyors for the efficient carrying out of their system. An accident oc- curred in consequence of neglect to plat the working plans according to surveys made up to date, the inaccurate plans misleading the superintendent so that he ordered work to be carried out without sufficient information as to the situation of openings made or tak- ing the necessary precautions to secure the safety of the men in the working places. The engineers , who had made the surveys and omitted platting the information on the plans had left the employ of the company prior to the engagement of the deceased who was killed in the accident. — Held, Tasehereau, C.J., contra, that the employers not being charged with knowledge of the neglect of their officers to carry out the efficient system provided for the operation of their mine, could not be held responsible for the conse- quences of failure to provide complete and accurate plans of the mine. — Held, also, that negligence of the superintendent would be negligence of a co-employee of the person injured for which the employers would not be liable at common law, although there might be liability under the British Colum- bia "Employers' Liability Act" (R. S. B. C. c. 69, s. 3), for negligence on the part of the superintendent. — Judgment appealed from re- versed and a new trial ordered, Tasehereau, C.J., being of opinion that a judgment should be entered in favour of the plaintiffs. — Per Tasehereau, C.J. : — An employee who has left the service of the common master can- not be regarded as a fellow workman of ser- vants engaged subsequently. Hashing v. LeRoi No. 2, xxxiv., 244. 197. Mines and mining — Dangerous ways, works, etc. — Inspection of pit — Employer and employee — Evidence — Presumption — Re- versal of findings of fact.J — While at work in the pit of an asbestos mine the pit fore- man was killed by loose rock falling on him from the wall of the pit. Some time befove the accident, after setting off a blast, the wall had been inspected by a competent per- son, under the personal direction of the pit foreman himself, and the particular spot from which the loose rock fell tested by sounding and prying with a crowbar and judged to be safe. In an action to recover damages the courts below inferred from the evidence that the wall of the pit had been allowed to remain in an unsafe condition, and held the defendants responsible on ac- count of negligence in this respect. On ap- peal to the Supreme Court of Canada : — Held, reversing the judgment appealed from, Girouard, J., dissenting, that as an inspec- tion had been duly made by competent per- sons, using their best judgment in the honest discharge of their duty, who reported the wall to be secure, there could be no negli- gence Imputed to the company in that ii'- spect, although it afterwards appeared that there had been error in judgment or in the manner in which the inspection was per- formed. — Held, also, Girouard, J., dissent- ing, that where there is evidence that makf's it unnecessary to draw inferences or rely upon presumptions from facts proved, the findings of two courts below, which have acted upon such inferences or presumptions, should be reversed. Canadian Asbestos Go. V. Girard, xxxvi., 13. 18. Navigation. 198. Navigation of inland waters — Colli- sion — Government ships and vessels — "Pub- lic work" — "The Exchequer Court Act," s. 16 — Construction of statute — Right of ac- tion.} — His Majesty's steam-tug "Cham- plain," while navigating the River St. Law- rence, at some distance from a place where dredging was being carried on by the Gov- ernment of Canada, and engaged in towing an empty mud-scow, owned by the Govern- ment, from the dumping ground back to the place where the dredging was being dono, came in collision with the suppliant's steam barge, which was also navigating the river, and the barge sustained injuries. — Held, af- firming the judgment of the Exchequer Court of Canada, that there could be no recovery against the Crown for damages suffered in consequence of negligence of its officers or servants, as the injury had not been sus- tained on a public work within the meaning of the sixteenth section of the "Exchequer Court Act." Chambers v. Whitehaven Har- bour Commissioners ( [1899] 2 Q. B. 132) ; Hall V. Snowden, Hubbard d Co. ( [1899] 2 Q. B. 136) , Lowth v. Ibbotson ( [1899i] 1 Q. 769 NEGLIGENCE. 770 B. 1003), Fmnell v. Bowman (12 App. Cas. 643) and The Attorney-Oeneral of the ^traii a Settlements v. Weymss (ISApp. Oas. 192), referred to. Pwul v. Wte King, xxxviii., 126. 199. Maritime law — Collision — Tug and tow— Negligence of tow.] — A tug with tlie ship "Wandrian" in tow left a wharf at Parrsboro. N.S., to proceed down the river and get to sea. The schooner "Helen M." was at anchor in the channel and the tug directed its course so as to pass her on the port side when another vessel was seen com- ing out from a slip on that side. The tug then, when near the "Helen JJ." changed her course, without giving any signal, and tried to cross her bow to pass down on the star- board side and in doing so the "Wandrian" struck her, inflicting serious injury. In an action against the "Wandrian" by the own- ers of the "Helen M." the captain of the former insisted that the schooner was in the middle of the channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side. — Held, affirming the judgment of the local judge (11 Ex. C. E. 1) that the navigation of the tug was faulty and shewed negligence ; that if the "Helen M." was on the eastern side of the channel as found by the judge there was plenty of room to pass on her port side, and if, as contended, she was in the middle of the channel she could easily have been passed to starboard ; and that in attempting to cross over and pass to starboard when she was so near the "Helen M." as to render a collision almost inevitable was negligence on the tug's part ; and that the "Helen M." exercised proper vigilance and was not neg- ligent in failing to slacken her anchor chain "as the "Wandrian" was too close and had not signalled. — Beld, also, that the tow was liable for such negligence in the navigation of the tug. The " Wandrian '' v. Hatfield, xxxviii., 431. 200. Maritime law — Collision — Failure to hear signal — Evidence.] — The SS. "Senlac" was coming out of Halifax harbour taking the eastern side of the channel. There was a dense fog at the time and the fog signals were sounded at regular intervals. She was making about six knots and having passed George's Island heard the whistle of an in- coming steamer. Fog signals were given in reply and when the incoming yessel, the "Rosalind," was estimated to be about half a mile off the "Senlac" gave a single short blast and directed her course to starboard. The "Rosalind" replied to this signal and stopped her engines. Within a few seconds the "Senlac" was seen about a ship's length away on the port bow and almost at the same moment the latter gave two short blasts on her whistle and swung to port threatening to cross the "Rosalind's" bow. The "Rosalind's" engines were immediately put "full speed astern" but too late to avoid a collision in which the "Senlac" was ser- iously damaged. At the trial of an action by the latter, reliance was placed on the failure of the "Rosalind" to respond to her signals, but the first signal admitted to have been heard on the "Rosalind" was the one short blast when the "Senlac" weat to star- board. The result of the trial was that both vessels were found in fault and on appeal by the "Rosalind" ; — Held, that the "Senlac" was in fault in continuing on her course when the vessels were quite near together instead of stopping and reversing and was alone to blame for the collision, and that the failure to hear her signals was not negli- gence on the part of the "Rosalind" and d'd not contribute in any material degree to the accident. 88. "Rosalind" v. Steamship Sen- lac Co., xli., 54. 201. Driving lumber — Rights in naeigaible waters — River improvements — Contract with Crown — ■ Rights of contractor — Reckless driving — "Rivers and Streams Acf (Ont.) —"B. N. 4. Act, 1867," SS. 91 (10), 92 (10).] — In 1910, Parliament voted money for "Montreal River Improvements above Latchford" and the Crown, through the Minister of Public Works, gave a contract to H. in connection with the work. In performance of the work L. placed a coffer- dam on each side of the river leaving an opening between them some 200 feet wide. In the spring of 1911 the cofferdam on the north side was covered by three feet of water and the logs of B., being driven down through the' opening, were allowed to rest against a pier a few hundred feet below and formed a jam the rear of which was over the cofferdam. Either by weight of the jam or increased pressure by breaking it, in the ordinary mode, the destruction of the cofferdam was caused. — Held, Fitzpatrick, C.J., and Duff, J., dissenting, that B. was responsible for the injury so caused ; that with more care in driving the formation of the jam might have been avoided ; that, if breaking the jam in the ordinary way was likely to cause damage, another paode should have been adopted even if it would cause de- lay and greater expense ; and that the em- ployees of B. acted with a wilful disregard of the contractors' rights and caused "un- necessary damage." — Held, per Davies, Ang- lin and Brodeur, JJ., that, in the absence of Dominion legislation to the contrary, the rights of lumbermen under the Ontario "Rivers and Streams Act" ( pre-Conf edera- tion legislation) are not subordinate but equal to those of persons acting for the Do- minion Government in matters respecting navigation. — Per Davies and Duff, JJ., Anglin, J., duhitante. — The cofferdam was a "structure" and subject to the provisions of section 4 of the "Rivers and Streams Act." — Per Davies and Anglin, JJ. — Even if not a "structure" as it was placed in the river under sanction of Dominion legislation, B.'s rights were restricted practically as they would be under section 4. — Held, per Fitz- patrick, C.J., and Duff, J. — A vote for "River Improvements" does not of itself authorize an interference with the rights of lumbermen under the "Rivers and Streams Act." These rights were exercised in the usual and proper manner and as no breach of duty by B. to avoid "unnecessary dam- age" was proved he could not be held liable for the damage to the cofferdam. — Judg- ment of the Appellate Division (37 Ont. L. R. 17) reversing that at the trial (34 Ont. s.c.D. — 25 ^71 NEGLIGENCE. 772 L. R. 204) affirmed. Booth v. Lotoeru, liv., 421. 202. Careless mooring of vessels — - Vie major, xxxv., 2&3. 203. Dangerous way — Ferry wharf — 'Evidence — Precautions for preventing acci- dents — Findings of jury — Non-suit, xxxv., 693. 204. Admiralty law — Navigation — Narrow channel — Rule of the road — Lookout — Meeting ships — Collision — ■ Special rule of port — Sorel harbour regulations — Lights and signals — Evidence — Damages, xxxvi., 564. 8ee Admibamy Law. 205. Maritime law — Collision — Crossing ships — Admiralty Rules, 1897, r. 19, xxxvii., 284. See Admiealtt Law. 206. Admiralty law — Navigation — Over- tahing vessel — Findings of fact — Cause of collision, Gout. Cas. 405. See Admiealtt Law. 207. Appeal — New grounds — xli., 154. See Admieaitt Law. Collision, 208. Admiralty law — ■ Collision — Narrow channel — Departmental rules. Bonham v. The "Honoreva," liv., 51. See Admiealtt Law. 19. Public Woeks; Liabilitt of Ceown. 209. Employees of the Crown — Common employment — Defence by Crown — Work- men's Compensation Act.] — The Manitoba Workmen's Compensation Act does not ap- ply to the Crown, Idington, J., dissenting. — In Manitoba, the Grown as represented by the Government of Canada may, in an ac- tion for damages for injuries to an employee, rely on the defence of common employment. Idington, J., dissenting (9 Ex. C. R. 330, afiirmed.) Ryder v. The King, xxxvi., 462. 210. Injury on public work — "Puilio Works Health Act" — Construction of stat- ute— R. 8. C. 1906, c. 135, s. 3 — Regulations by order-in-council — Breach of statutory duty — Action — Misjoinder.'] — The provi- sions of section 3 of the "Public Works Health Act," R. S. €. 1906, c. 135, do not impose on a Government Department or a company constructing a public work the obligation to provide hospitals and surgical attendance for the treatment of personal in- juries sustained by employees, whether of themselves or of th?ir contractors or sub- contractors, in the construction of such work. Grand Trunk Pacific Ry. Co. v. White, xliii., 627. 211. Navigation of inland waters — Colli- sion — Government ships and vessels — "Public work" — Right of action — Construc- tion of statute — Exchequer Court Act, xxxviii., 126. 212. Negligence of fellow servant — Opera- tion of railway — Defective switch — Tort — Public work — lAabiUty of Crown — Right of action — Lord Campbell's Act, xl., 229. 213. Government railway — Operation over other lines — Agreement for running rights — Extensions and branches — "Public work" — Construction of statute — "Government Railways Act" ■ — • "Fxchequer Court Act," xl., 431. See Railways. 214. River improvements ■ — Precautions against danger to existing constructions — Alteration of natural conditions — Responsi- bility for damages — Vis major, xli., 116. See Rivees and Steeams. 215. Crown — Injury on public work — Government railway — Fire from engine — R. S. C. 1906, c. 140, s. 20 (c). Chamber- lain V. The King, xlii. 350. See Pttblic Woek. 216. Crown — Negligence — Injury on pub- lic work — Government railway — Fire from engine— R. S. C. (1906) c. I40, s. 20 (c) — Words and phrases, xlii., 350. See Ceown. 217. Crown — Injury to "property on pub- lic work" — Jurisdiction — R. 8. C. [1906] c. IJfi, s. 20 (J) and (0), liii., 626. See Ceown. 218. Public work — Damage to adjacent lands ~ Liability of Crown — "Exchequer Court Act," s. 20— Litigious rights— Bar to action — "Rideau Canal Act," 8 Geo. IV. c 1 (V.G.) — Limitation of action, liii., 450. See Public Woek. 20. Railways. 219. Railways — Braking apparatus — Rail- way Act (1888) s. 243 — Sand valves— No- tice of defects in machinery — Liability of company— Provident society -Contract in- demnifying employer— Indemnity and satis- Tactionr—Lord Campbell's Act — Art. 1056 C. t.— Right of action.]— The "sander" and sand-valves of a railway locomotive, which may be used in connection with the brakes in stopping a train, do not constitute part ot the apparatus and arrangements" for applying the brakes to the wheels required by section 243 of the Railway Act of 1888 — Failure to remedy defects in the sand- valves, upon notice thereof given at the re- pair shops in conformity with the company's rules, IS merely the negligence of an em- ployee and not negligence attributable to the company itself : therefore, the company may validly contract with its employees so as to exonerate itself from liability for such neg- ligence and such a contract is a good an- swer to an action under article 1056 of the Civil Code of Lower Canada. The Queen V. Orenier (30 Can. S. C. B. 42) folWed! -—Girouard, J., dissented on the ground that the negligence found by the jury was uegli- 773 JTEGLIGENCE. 774 gence of both the company and its employ- ees. (Reversed by Privy Council, [1906] A. 0. 184). Grand Trunk Railway Go. v. Miller, xxxiv., 45. 220. Railway crossing — Rate of speed — Crowded districts — Fencing — 51 Vict. c. 29, ss. Wt, 259 (D.)~55 ^ 56 Vict. c. 27, ss. 6 and 8 (D.).] — In passing through a thickly peopled portion of a city, town or village a railway train is not limited to the maximum speed of six miles an hour prescribed by 55 & 56 Viet. c. 27, s. 8, so long as the railway fences on both sides of the track are main- tained and- turned into the cattle guards at highway crossings as provided by s. 6 of said Act. Judgment of the Court of Appeal (5 Ont. L. B. 313) reversed, Girouard, J., dis- senting. Grand Tirunk Railway Go. v. Mc- Kay, xxxiv., 81. 221. Dangerous way — Defective works — Employer's Liability Act — Injury to servant — Proximate cause — (R. S. N. 8. (1900), c. 79.] — ^D. was engaged in moving cars at a quarry of the company. The cars were loaded at a chute under a crusher and had to be taken past an unused chute about 200 feet away supported by a post placed 7% inches from the track. D. having loaded a car found that it failed to move as usual after unbraking and he had to come down to the foot-board and shove back the foot- rod connected with the brake. The car then started and he climbed up the steps at tlie side to get to the brake on the top, but was crushed between the car and the post. He could have got on the rear of the car instead of using the steps or jumped down and walked along after the car until it had passed the post. The manager at the quarry had been warned of the danger from the post but had done nothing to obviate it. — Held, reversing the judgment appealed from (86 N. S. Rep. 113), Davies and Killam, JJ., dissenting, that D.'s own negligence was the cause of his injury and the company were not liable. — Held, per Davies and Kil- lam, JJ., that the position of the post was a defect in the company's works under the Employers' Liability Act which was evi- dence of negligence. Dominion Iron and Steel Go. v. Day, xxxiv., 387. 222. Dangerous way — Operation of rail- way — Defective bridge — Gratuitous passen- gers — lAaUUty of carrier for damages.] — In the absence of evidence of gross negligence, a carrier is not liable for injuries sustained by a gratuitous passenger. [Moffatt v. Bate- man (L. R. 3 P. C. 115) followed. Harris V. Perry & Go. ([1903] 2 K. B. 219) dis- tinguished. — .LAlthough a railway company may have failed to properly maintain a bridge under their control so as to ensure the safety of persons travelling upon their trains, the mere fact of such omission of duty does not constitute evidence of the gross negligence necessary to maintain an action in damages for the death of a gratu- itous passenger. Judgment appealed from (9 B. 0. Rep. 453) affirmed. Nightingale V. Union GolUery Co., xxxv., 65. 223. Railway — Proximate cause — Impru- dence of person injured.] — A railway train was approaching a station in London and the conductor jumped off before the train reached it, intending to cross a track be- tween his train and the station, contrary to the rule prohibiting employees to get off a train in motion. A light engine was at the time coming towards him, on the track he wished to cross, which struck and killed him. The light engine was moving slowly and showed a red light at the end nearest the conductor which would indicate that it was either stationary or going away from him. In an action by the conductor's wi- dow she was non-suited at the trial and a new trial was granted by the Court of Ap- peal. — Held, reversing the judgment of the Court of Appeal, Davies and Killam, JJ., dissenting, that as the light engine had been allowed to pass a semaphore beyond the station on the assumption, which was justified, that it would pass before the train came to a stop at the station, and as, if the deceased had not, contrary to rule, left the train while in motion, he could not have come into contact with said engine, the plaintiff was not entitled to recover. — -Held, per Davies and Killam, JJ., dissenting, that the act of the deceased in getting off the train when he did was not the proximate cause of the accident and plaintiff was en- titled to have the opinion of the jury as to whether or not deceased was misled by the red light. Grand Trunk Ry. Go. v. Birkett, XXXV., 296. 224. Employers' Liaiility Act — Defect in ways, works, dc. — Care in moving cars — Gontrihutory negligence.] — O., a workman in the employ of defendant company, was directed by a superior to cut sheet iron and to use the rails of the company's track for the purpose. The superior offered to assist and the two sat on the track facing each other. O. had his back to two cars stand- ing on the track to which, after they had been working for a time, an engine was at- tached which backed the cars towards them, and O. not hearing or seeing them in time was run over and had his leg cut off. — Held, that 0. did not use reasonable precautions for his own safety in what he knew to be a dangerous situation and could not recover damages for such injury. — Held, also, that the employees engaged in moving the cars were under no obligation to see that there was no person on the track before doing so. — Held, per Sedgewick, Nesbitt and Killam, JJ., that the want of a place specially pro- vided for cutting the sheet iron was not a defect in the ways, works, &c., of the com- pany within the meaning of section 3 (a) of The Employers' Liability Act. — Held, per Girouard and Davies, JJ., that if it was such defect it was not the cause of the in- jury to O. Dominion Iron and Steel Go. v. Oliver, xxxv., 517. 225. Constitutional law — Operation of railway — Negligence — Agreements for ex- emption from liaiility — Prohibitory legisla- tion — Power of Parliament.] — ^An Act of the Parliament of Canada providing that no railway company within its jurisdiction shall be relieved from liability for damages for personal injury to any employee by reason of any notice, condition or declaration issued by the company, or by any insurance or provident association of railway employees ; 775 ifBGLIGEIfCE. 776 or of the ijjules or by-laws of the association : or of privity of interest or relation between the company an4 the association or contri- bution of funds by the company to the as- sociation ; or of any benefit, compensation or indemnity to which the employee or bis per- sonal representatives may become entitled to or obtain from such association ; or of any express or implied acknowledgment, acquit- tance or release obtained from the associa- tion prior to such injury purporting to re- lieve the company from liability, is intra vires of said Parliament. Nesbitt, J., dis- senting. (Appeal to iPrivy Council dis- missed, [1907] A. C. 65.) In re Hailwwy Act, 1904, xxxTi., 136. 226. Oper(ition of railway — Etfcessive speed — Level crossings — Fencing — Rqilway Act, 1888, ss. 194, 197—55 & 56 Vict. c. 27, s. 6' (D.) — Evidence — Reasonable infer- ences.] — The provisions of 55 & 56 Vict. c. 27, s. 6, amending s. 197 of The Kailway Act, 1888, and requiring at every public road crossing at road level of the railway the fences on both sides of the crossing and of the track to he turned in to the cattle guards, applies to all public road crossings and not to those in townships only as is the case of the fencing prescribed by s. 194 of The Railway Act, 1888. Grand Trunk Bail- way Oo. V. McKay (34 Can. S. C. B. 81) followed. — Three persons were near a public road crossing when a freight train passed, after which they attempted to pa^s over the track and were struck by a passenger train coming from the direction opposite to that of the freight traan and killed. The pas- senger train was running at the rate of forty-five miles an tour, and it was snowing slightly at the time. On the trial of actions under "Lord Campbell's Act" against the railway company, the jury found that the death of the parties was due to negligence "in violating the statute by running at an excessive rate of speed," and that deceased were not guilty of contributory negligence. A verdict for the plaintiff in each case was niaintained by the Court of Appeal. — Held, that the railway company was liable ; that the deceased had a right to cross the track and thpre was no evidence of want of care on their part and the same could not be pre- sumed and, though there may not have been precise proof that the negligence of the com- pany was the direct cause of the accident, the jury could reasonably infer it from the facts proved and their finding was justi- fied. McArthur v. Dominion Cartridge Co. ([1905] A. C. 72) followed; Wakelin v. London & South Western Railway Co. (12 App. pas. 41) distinguished. — Held, also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care, that owing to the snowstorm and the escap- ing steam and noise pf the freight train they anight well have failed to see the headlight or hear tbe approach of the passenger train if they had looked and listened. Grand Trunk Railway Co. v. Hainer; Oran^ Trunk Uailway Co. v. Hughes; Qrani Trunk Rail- way Co. V. Brefidy, xxxvi., 180. 227. Qparfition of railway — Straying ani- mals^—^egligenee — Duty as regards trespas- sers — Herd/ing stock — Evidence — Inferences as to fact.'] — A railway company is not charged with any duty in respect of avoid- ing injury to animals wrongfully upon its line of railway until such time as their pres- ence is discovered. Idington, J., dissented, though concurring in the judgment on the other grounds. Canadian Pacific Railway Co. V. Eggleston, xxxvl., 641. 228. Operation of railway — Finding of jury — Evidence.] — A brought an action, as administratrix of the estate of her husband, against the C. P. K. Co., claiming compensa- tion for his death by negligence and aUeging in her declaration that the negligence con- sisted in running a train at a greater speed than six mUes an hour through a thickly populated district and in failing to give the statutory warning on approaching the cross- ing where the accident happened. At the trial questions were submitted to the jury who found that the train was running at a speed of 25 miles an hour, that such speed was dangerous for the locality, and that the death of deceased was caused by neglect or omission of the company jn failing to reduce speed as provided by "The Railway Act." A verdict was entered for the plaintiff and on motion to the court in tanco, to have it set aside and judgment entered for defendants, a new trial was ordered on the ground that questions as to the bell having been rung and the whistle sounded should have been submitted to the jury. The plaintiff ap- pealed to the Supreme Court of Canada to have the verdict at the trial restored an4 the defendants, by cross-appeal, asked for judg- ment. — Held, Idington, J., dissenting, that by the above findings the jury must be held to have considered tie other grounds of neg- ligence charged, as to which they were properly directed by the judge, and to have exonerated the defendants from liabil- ity thereon, and the new trial was impro- perly granted on the ground mentioned. — Held, also, that though there was no ex- press finding that the place at which the accident happened was a thickly peopled portion of the district, it was necessarily imported in the findings given a'bove, that this fact had to be proved by the plaintiff and there was no evidence to support it ; and that, as the evidence shewed it was not a thickly peopled portion, the plaintiff could not recover and th.e defendants should have judgment on their cross-appeal. Andreas v. Canadian Pacific Ry. Co., xxxvii., 1. 229. Railways — Defective construction of road-hed — Dangerc-:s way — Vis major — Evi- dence — Onus of proof — Latent defect.] — The road-bed of appellants' railway was con- structed, in 1893, at a place where it fol- lowed a curve round the side of a hill, a cutting being made into the slope and an embankment formed to carry the rails, the grade being one and one-half per cent., or 78.2 feet to the mile. The whole of the embankment was built on the natural sur- face, which consisted, as afterwards discov- ered, of a layer of sandy loam of three or four feet in depth resting upon clay subsoil. No borings or other examinations were made in order to ascertain the nature of the sub- soil and the road-bed remained for a num- ber of years without shewing any subsidence except such as was considered to be due to 777 NEGLIGEXGE. 778 natural causes and required only occasional repairs ; the necessity for such repairs had become more frequent, however, for a couple of months immediately prior to the accident which occasioned the injury complained of. Water, coming either from the berm-ditch, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, lubricated the surface of the clay and, finally, caused the entire embankment and sandy layer to slide away about the time a train was approaching, on the evening of 20th September, 1904. The train was de- railed and wrecked and the engine-driver was killed. In an action, by his widow for the recovery of damages : — Held, that in con- structing the road-bed, without suflBcient ex- amination, upon treacherous soil and failing to maintain it in a safe and proper condi- tion, the railway company was, primA facie, guilty of negligence which cast upon them the onus of shewing that the accident was due to some undiscoverable cause ; that this onus was not discharged by the evidence adduced from which inferences merely could be drawn and which failed to negative the possibility of the accident having been oc- casioned by other causes which might have been foreseen and guarded against, and that, consequently, the company was liable in damages. Judgment appealed from affirmed, following The Great Western Railway Co. of Canada v. Braid (1 Moo. P. C. (N.S.) 101) . Quebec and Lake St. John By. Go. v. Julien, xxxvii., 632. 230. Railway crossing — Findings of jury — "Look and listen."] — ^M.___attempted to drive over a railway track which crossed the high- way at an acute angle where his back was almost turned to a train coming from one direction. On approaching the track he looked both ways, but did not look again just before crossing, when he could have seen an engine approaching which struck his team and he was killed. In an action by his wi- dow and children, the jury found that the statutory warnings had not been given and a verdict was given for the plaintiffs and affirmed by the Court of Appeal. — Held, af- firming the judgment of the Court of Appeal (12 Out. L. R. Tl), Fitzpatrick, C.J., hesi- tante, that the findings of the jury were not such as could not have been reached by rea- sonable men and the verdict was justified. Wahash Railroad Co. v. ilisener, xxxviii., 94. 231. Railway Act, 1903— S Edw. YII. c. 58, s. 237 — Animals at large — Construction of statute — Words and phrases — "At large upon the highway or otherwise" — Fencing of railway — Trespass from lands not ielong- ing to owner.} — C.'s horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, which had not been provided with a gate by the company, and were killed by a' train. There was no per- son in charge of the animals, nor was there evidence that they got at large through any negligence or wilful act attributable to C. — Held, affirming the judgment appealed from (16 Man. R. 323), that, under the provi- sions of the fourth sub-section of section 237 of "The Railway Act, 1903," the company was liable iu damages for the loss sustained notwithstanding that the animals had got upon the track while at large in a place other than a highway intersected by the rail- way. Canadian Pacifio By. Co. v. Car- lutlieis, xtxix., 251. 2.'!2, Operation of railway — Breach of statutory duty — Common employment — Nova Hcotiu. Ry. Act, B. 8. N. S. (1900) c. 99, s. 251 — Employers' Liability Act — Fatal Injuries Act.] — Section 251 of the Railway Act of Nova Scotia provides that when a train is moving reversely in a city, town or village the company shall station a person on the last car to warn persons standing on or crossing the track, of its approach and provides a penalty for violation of such pro- vision. — Beld, that this enactment is for the protection of servants of the company stand- ing on or crossing the track as well as of other persons. — M. was killed by a train consisting of an engine and coal car, which was moving reversely in North Sydney. No person was stationed on the last car to give warning of its approach and as the bell was encrusted with snow and ice it could not be heard. Evidence was given that on a train of the kind the conductor was supposed to act as brakesman and would have to be on the rear of the coal-car to work the brakes, but when the car struck M., who was en- gaged at the time in keeping the track clear of snow, the conductor was in the cab of the engine. — Held, Idington, J., dissenting, that an absolute duty was cast on the company by the statute to station a person on the last car to warn workmen, as well as other persons, on the track which, under the facts proved, they had neglected to discharge. The defence under the doctrine of common em- ployment was therefore, not open to them. Groves v. Wimborne, ([1898] 2 Q. B. 402), followed. — Held, per Idington, .7., that the evidence shewed the only failure of the com- pany to comply with the statutory provision to have been through the acts and omissions of the fellow-servants of deceased ; that the company, therefore, could not be held liable for the consequences under the "Fatal Injur- ies Act;" that it is, therefore, unnecessary to determine the applicability of the said sec- tion of the "Railway Act," as the fellow- servants were guilty of common law negli- gence which rendered the company liable but only by virtue of and within the limits of the "Employers' Liability Act." (Leave to appeal to Privy Council refused, 12th May, 1908.) McMulUn v. tfora Scotia Steel and Coal Co., xxxix., 593. 233. Negligence of fellow-servant — Opera- tion of railway — Defective switch — Public u-ork — Tort — Liability of Crown — Bight of action — Exchequer Court Act, s. 18 (c) — Lord CamphelVs Act— Art. 1056 C. C.]— In consequence of a broken switch, at a siding on the Intercolonial Railway (a public work of Canada), failing to work properly, al- though the moving of the crank by the pointsman had the effect of changing the signal so as to indicate that the line was properly set for an approaching train, an ac- cident occurred by which the locomotive engine was wrecked and the engine-driver killed. In an action to recover damages •rr? NEGLIGENCE. 780 fFom the Crown, under article 1056 of the Civil Code of Lower Canada : — Held, affirm- ing the judgment appealed from (11 Ex. C. R. 119), that there was such negligence on the part of the officers and servants of the Crown as rendered it liable in an action in tort; that the "Exchequer Court Act," 50 & 51 Vict. c. 16, s. 16 (c), imposed liability upon the Crown, in such a case, and gave jurisdiction to the Exchequer Court of Can- ada to entertain the claim for damages ; and that the defence that deceased having ob- tained satisfaction or indemnity within the meaning of article 1056 of the Civil Code, by reason of the annual contribution made by the Railway Department towards The Intercolonial Railway Employees' Relief and Insurance Association, of which deceased was a member, was not an answer to the action. Miller v. The Grand Trunk Rail- loay Go. ([1906] A. C. 187) followed. (Leave to appeal to Privy Council was re- fused, ISth July, 1908.) The King v. Arm- strong, xl., 229. 234. Operation of railway — Collision •^ — Stop at crossing — Statutory rule — Com- pany's rule — Contrihutory negligence ■ — R. S. 0. [19061 0. 37, s. 27S.]— A train of the Wabash Railroad Co. and one of the Canadian Pacific Railway Co. approached a highway crossing at obtuse angles. The former did not, as required by s. 278 of the Railway Act, come to a fuU stop; the latter did so at a semaphore nearly 900 feet from the crossing and receiving the proper signal proceeded without stopping again at a "stop post" some 400 feet nearer where a rule of the company required trains to stop. The trains collided and the engineer of the Can- adian Pacific Railway Co. was killed. In an action by his widow : — Held, that the failure of the engineer to stop the secohd time was not contributory negligence wliich prevented the recovery of damages for the death of plaintiff's husband caused by the admitted negligence of defendants. Waiash Rd. Co. V. McKay, xl., 251. 235. Railway crossing — Contributory negligence — Life insurance — Deduction from damages — Practice — Appeal — Equal division of opinion — Costs.l — Plaintiff's husband was driving in his waggon along the highway in the town of Strathroy where it crossed the defendants' line of railway. There was evi- dence to shew that the view of an approach- ing train was obstructed by the station house, buildings and cars, until a person approaching on the highway had reached within a short distance of the main line. The evidence was contradictory as to the ringing of a bell or the sounding of a whistle, but the jury found that the engineer had failed to do either in approaching the crossing in question. The plaintiff's evidence shewed that the deceased, in approaching the cross- ing, was driving with his head down, ap- parently oblivious of his surroundings. For the defence it was deposed to, .that the de- ceased was driving slowly in approaching the main track with his head down, but when some distance off he perceived the train and struck his horses with a whip, but was hit before he was able to cross the line. The jury found the defendants guilty of negligence and negatived any contributory negligence on the part of ithe deceased. The deceased had effected a policy of insurance on his life, and, at the trial, the jury were directed to deduct ithe amount of the policy from the verdict. The Divisional Court, Wilson, C.J., dissenting, held that the case was one for the jury; that the findings in plaintiff's favour ^ould not be disturbed and that the policy of insurance had been improperly directed by the learned judge at the trial to be deducted from the damages. In the Court of Appeal it was held that it could not be said that the verdict of the jury was against the weight of evidence, applying the principles laid down in Metropolitan Ry. Co. V. Wright (11 App. Cas. 152). Hag- arty, C.J., and Osier, J., were of opinion that the policy of insurance should be de- ducted from the damages, while Burton and Patterson, JJ., were of the contrary opin- ion. — Held, per Sir W. J. Ritchie, C.J., Fournier and Henry JJ., that the appeal should be dismissed with costs.- — Held, per Strong, Taschereau and Gwynne, JJ., that the deceased was guilty of contributory negligence. — Held, per Sir W. J. Ritchie, C.J., and Strong, Fournier and Henry, JJ., that the policy of insurance should not be deducted from the damages. — Held, per Taschereau, J., that it was the duty of the deceased before attempting to cross the track to look and see whether a train was approaching, and that his failure to do so was the cause of the accident. — The court being equally divided in opinion the appeal was dismissed without costs: [Cf. Grand Trunk Railway Go. v. Jennings (13 App. Cas. 800).] Grand Trunk Ry. Co. v. Beckett (xvi., 713). Cam. Cas. 228. 236. Railway station buildings — Danger- ous way — Invitation or license — Breach of duty — Negligence — Questions for jury.J — The approach to a station of the Grand Trunk Railway from the highway was by a planked walk crossing several tracks, and a train stopping at the station sometimes overlapped this walk, making it necessyry to pass around the rear car to reach the platform. J., intending to take a tram at this station before daylight, went along the walk as his train was coming in, and see- ing, apparently, that it would overlap, started to go around the rear when he was struck by a shunting engine and killed. It was the duty of this shunting engine to assist in moving the train on a ferry, .'ind it came down the adjoining track for that purpose before the train had stopped. Its headlight was burning brightly, and the bell was kept ringing. There was room between the two tracks for a person to stand in safety. In an action by the widow of J. against the company : — Held, affirming the judgment of the Court of Appeal (16 Ont. App. R. 37), Fournier and Gwynne, J J., dissenting, that the company had neglepteil no duty which it owed to the deceased as one of the public. Held, per Strong and Patterson, JJ., that while the public wore invited to use the planked walk ti rcacJi the station, and also to use the company's premises, when necessary, to pass around a train covering the walk, there was no im- plied guaranty that the traffic of the road 781 NEGLIGENCE. 783 should not proceed in the ordinary way, and the company was under no obligation to provide special safeguards for persons at- tempting to pass around a .train in motion. — Held, per Taschereau, J., that the death of the deceased was caused by his own neg- ligence. — Held, per Patterson, J. — In an issue of negligence, the jury should be a.slsed, "What was the duty which you find to have been neglected?" Jones v. Grand Trunk Ry. Go. (xviii., 696) ; Cam. Cas. 262. 237. Operations of railway — Neglipciwe — Moving train — Regulations — Personal lia- bility of employee — Estoppel.] — I'laintifE was the holder of a first-class ticket entitling her to transportation from Sussex to Penob- squis, on the Intercolonial Railway,, upon which the defendant was a conductor. The train, consisting of a number of freight cars, with one second and one first-class car, after its arrival at Sussex was backed up so that the first-class car, which was at the rear end of the train, was at a distance from the station platform. After the conductor had given the signal "all aboard," the train started but was not stopped when the first class car came alongside the platform. The plaintiff attempted to board the car as it passed the platform, but fell and was in- jured. — Held, per Taschereau and Gwynnc, JJ., dissenting, that it was the duty of the conductor to have had the first-class car brought up in front of the platform, before starting from the station, to allow passen- gers to get on board in safety, and that his failure to do so was negligence for which the plaintiff was entitled to recover. — Per Henry, .T. — ^Although getting on a train in motion is a violation of the railway regula- tions, the conductor was estopped from sot- ting this up, as he directed the passenger to get on board, which could only be accom- plished by getting on the train while in mo- tion. — Per Henry, J. — That a railway com- pany carrying passengers cannot shield itself from the consequences of its negligence by shewing that the person injured obeyed specific instructions of the conductor instead of the general regulations and directions of which he had notice. — Per, Taschereau and Gwynne, JJ., dissenting. — The accident oc- curred by the folly and recklessness of the plaintiff, in attempting to board a moving train, and not through any carelessness of the conductor. McFadden v. Hall. (Gout. Dig. 961; 1191) ; Cam. Cas. 589. 238. Operation of railway — Negligence ty fellow servants — Non-suit.] — The action was by a brakesman employed by the com-, pany for damages in respect of injuries in- curred by him while in discharge of his duty through the negligence of servants of the . company in checking the speed of the train on which he was working too suddenly, so that a part of the train became detached. The jury found for the plaintiff, and the trial judge granted a non-suit, although he was inclined to the view that the plaintiff had made out a case. The non-suit was set aside by the Divisional Court. — The Su- preme Court of Canada dismissed the appeal with costs for the reasons given in the Divi- sional Court, Gwynne, J., dissenting. Lake Erie and Detroit River Railway Co. v. Scott, Cout. Cas. 211. 239. Railways — "Fatal Accidents Act" — R. S. 0. (1897) 0. 129, s. 10.]— A re-hear- ing was ordered, the court intimating that the re-hearing should be upon the whole case, but drawing the attention of counsel spe- cially to the case of Mason v. Town of Peterlorough (20 Ont. App. R. 683), and to the combined effect of the "Fatal Acci- dents Act," and of s. 10, c. 129, R. S. O. (1897) — the questions being as to whether the two actions can now be maintained, or, if not, which one must fail. [Note. — Settled out of court.] Grand Trunk Ry. Co. v. Speers, Cout. Cas. 347. 240. Operation of railway — Dangerous way — Passenger jumping off train.]- — Plain- tiff jumped off a car when the train had be- come derailed. Other passengers who re- mained on the train were not injured. The charge of negligence was that the company had allowed the ties to become rotten, thus causing the rails to spread and resulting in the derailment. The defence was that if the plaintiff had not unnecessarily jumped off the car he would have escaped injury. The appeal was dismissed with costs. Halifaa> and Southwestern Ry. Co. v. Shea, Cout. Cas. 418. 241. Operation of railway — Level cross- ing — Negligence — Statutory signals ■ — ■ Findings against weight of evidence — New trial — Practice.] — S. sustained injuries through running into the engine of a rail- way train while he was riding a bicycle over a level crossing. On the trial of his action to recover damages, his witnesses stated that they had not heard the whistle sounded nor the bell of the engine rung, and he admitted that he had not taken any precautions to ascertain whether he could cross the track in safety. The evidence for the defence was positive as to the statutory signals being properly given, as well as other warnings of danger. — Held, per Fitzpatrick, C.J., and Duff, J., that the question was not as to the credibility of the witnesses on either side, but whether the character of the evidence for the plaintiffs could, in a reasonable view of the whole evidence adduced, be held to countervail the direct and positive testi- mony on behalf of the defendants, and, as it could not, the findings by the jury that the company had been guilty of negligence in failing to give the statutory signals were against the weight of evidence and unreason- able. — Per Girouard, J., that S. was guilty of contributory negligence in failing to take proper precautions to avoid the accident and the action should be dismissed. Railroad Company v. Houston (95 U. S. R. 697), re- ferred to. — The judgment appealed from was reversed and a new trial ordered, Idington and Maclennan, JJ., dissenting. Grand ilrunk Ry. Co. v. Sims, 8 Can. Ry. Cas. 61. 242. Railways — British Columbia Rail- way Act — Fire on right-of-way — Oomiustiltle matter on herm — Origin of fire — Damage to adjoining property — Evidence — Practice — New points raised on appeal.] — In an adtion against a railway company subject to the British Columbia Railway Act, if there is no evidence that the company had knowl- edge or notice of the existence of a fire on their right-of-way, not caused by the opera- 783 NEGLIGENCE. 784 tion of the railway, the fact that the con- dition of the tight-of-way facilitated the spread of the fire to adjoining property which was destroyed by it does not amount to actionahle negligence. — Where a matter relied upon to support the aetioa was not urged at the trial nor asserted on an ap- peal to the provincial court it is too late to put it forward for the first time on an ap- peal to the Supreme Court of Canada. — Judgment appealed from (14 B. C. Kep. 169) aflBrmed, Idington, J., dissenting. Laid- law V. Growsnest Southern Railway Co., xlii., 355. 243. Construction oj statute — 7 & 8 Eiw. TV., c. SI, s. 2 — Government railway — Fire from engine — Damages.l- — ^By 7 & 8 Edw. IV., c. 31, s. 2, the Government of Canada is liable for damage to property caused by a fire started by a locomotive working on a government railway, whether its officers or servants are or are n^t negli- gent, and by a proviso the amount of dam- ages is limited if modern and efficient ap- pliances have been used, and the officers or servants "have not otherwise been guilty of any negligence." — Held, Davies, J., dis- senting, that the expression "have not other- wise been guilty of any negligence" means negligence in any respect and not merely in the use of a locomotive equipped with modem and efficient appliances. — Sparks from a locomotive set fire to the roof of a government building near the railway track, and the fire was carried to and destroyed private property. The roof of this build- ing had on several previous occasions caught fire in a similar way, and the Government officials, though notified on many of such occasions, had only patched it up without repairing it properly. — Held, reversing the judgment of the Exchequer Court (12 Ex. C. R. 389), that the Government officials were guilty of negligence in having a build- ing with a roof in such condition so near to the track, and the owner of the property destroyed was entitled to recover the total amount of his loss. Leger v. The King, xliii., 164. 244. Death from contact with train — Ab- sence of eye witness — No warning at cross- ing — Findings of jury — Reasonable infer- ences — Balance of probabilities.] — About 5.30 on a Deceinber afternoon, G. left his place of employment to go home. An hour later his body was found some 350 yards east of a crossing of the Grand Trunk Rail- way, nearly opposite his house. There was no witness of the accident, but it was shewn on the trial of an action by his widow and children, that shortly after he was last seen an express train and a passenger train had passed each other a little east of the crossing, and there was evidence shewing that the latter train had not given the statutory signals when approaching the crossing. The jury found that G. was killed 'by the passenger train, and that his death was due to the negligence of the lat- ter in failing to give such warnings. This finding was upheld by the Court of Appeal. — Held, that the jury were justified in con- sidering the balance of probabilities and drawing the inference from the circum- stances proved, that the death of G. was caused by such negligence. Grand Trunk Ry. Co. V. Griffith, ilv., 380. 245. Negligence — Operation of railway — - Protection of passenger — Evidence — Mere conjecture.'] — On appeal from the judg- ment of the Supreme Court of Alberta (2 Alta. L. R. 549), affirming the judgment of Harvey, J., at the trial, dismissing the plaintiff's action with costs, the Supreme Court of Canada made an order that a new trial should be had, the Chief Justice and Idington, J., dissenting. Beck v. Can- adian Northern Railway Co., xlvii., 397. 246. Railways — Operation — Excessive speed — Trespasser — "Railway Act," R. 8. C, 1906, c. 37, ss. 275, 408 — Cause of accident.] — While a train was running at the speed of about .thirty miles an hour, on the company's line along the harbour front in the City of Vancouver, B.C., H., who had unlawfully entered upon the right- of-way through a break in the company's fences, attempted to cross the tracks in front of the train. The engine driver saw H., at a distance of about 500 feet and whistled several times. H. paid no attention to the danger signals and continued walk- ing in an oblique direction towards the track, and, observing his apparent inten- tion to cross the track and his disregard of the signals, the engine driver then ap- plied the emergency brakes which failed to stop the train in time to avoid the acci- dent by which H. was killed. In an ac- tion for damages by bis widow and chUd. — Held, that, notwithstanding the fact that deceased was a trespasser and committing a breach of section 408 of the "Railway Act," R. S. C, 1906, c. 37, the company was liable because their engine driver neg- lected to apply the emergency brakes at the time he became aware of the danger of accident when he first noticed deceased at- tempting to cross the tracks. Cnaadian Pacific Railway Go. v. Hinrich, xlviii., 557. 247. Railways — Operation — Equipment — Coupling apparatus — Duty to provide and maintain — Protection of employees — Inspec- tion — "Inevitable accident" — Findings of jury — Evidence — Common employment — Conflict of laws — "Railway Act," R. S. C, 1906, c. 37, s. 26Ji — Construction of statute — Vis major.] — ^A car attached to a fast freight train arrived at a station on the railway, in Saskatchewan, during a cold night in the winter ; it was equipped with an approyed coupling device, as required by section 264(c) of the "Railway Act," R. S. C, 1906. c. 37, and, on the arrival of the train, it had been inspected accord- ing to the usual practice and no defect was then found. When the train was be- ing moved for the purpose of cutting out the car, the uncoupling mechanism failed to work and, in consequence the plaintiff, an employee, sustained injuries. Subse- quently the coupler was taken apart and it was then discovered that the locking- block was jammed with ice (not visible from the exterior) which had formed in- side the chamber and prevented its release by the uncoupling device used to discon- nect the car before the train was moved. In an action for damages, instituted in the 785 XEGLIGENCE. 786 Province of Manitoba, the jury found that the company had been negligent "through lack of proper inspection," and judgment wag ent- ered on their verdict. On appeal from the judgment of the Court of Appeal for Mani- toba setting aside the verdict and entering jridgment for the defendants : — Held, per Fitzpatriek, C.J. and Davies and Anglin, JJ. — The obligation resting upon the company, both under the statute and at common law, was discharged by the customary inspection of the ear which had been made according to what was shewn to be "§ood railway practice, and there was no further duty im- posed in regard to unusual conditions not perceivable by the ordinary methods of in- spection. — Per Davies and Anglin, JJ. — Viewed as a finding upon a question of fact, the verdict of the jury upon the technical question as to the system of inspection should be set aside as being against evi- dence. Jackson v. Grand Trunk Railway Co. (32 Can. S. C. R. 245) ; Jones v. Spencer (77 L. T. 537) ; Metropolitan Asylum District v. Hill (47 L. T. 29) ; Jackson v. Hyde (28 U. C. Q. B. 294;), and Field v. Rutherford (29 U. C. C. P. 113), referred to. — Per Anglin, J. (Iding- ton, J., contra). — ^The defence of common employment, although taken away by legis- lation in the Province of Saskatchewan, where the injuries were sustained, was available as a defence in the courts of Mani- toba, where the action was brought. The "Halley" (L. R. 2 P. C. 193), referred to. — Judgment appealed from (23 Man. R. 435), affirmed, Idington and Duff, J J., dis- senting. — Per Idington and Duff, jJ., dis- senting. — • Section 264 of the "Railway Acf imposes upon railway companies the absolute and continuing duty not only to provide, but also to maintain in efiicient use the apparatus thereby required ; where it is shewn that the apparatus faUed to operate, when used, the onus is upon the railway company, in an action under sec- tion 386 of the "Railway Act," to shew that there had been a thorough inspection thereof made to ascertain that it was in efficient working order before the train was moved. Johnson v. Southern Pacific Go. (25 S. C. Kepr. 159), referred to. Phelan V. Grand Trunk Pacific Railway Co., li., 113. 248. Government railway regulations — Operation of trains — Negligent signaling — Fault of fellow servant — Common fault — Boarding moving train — Disobedience of employee — Voluntary exposure to danger — Master and servant — Cause of injury — R. 8. C. 1906, c. 36, ss. 49, 5^.]— By regula- tion of the Intercolonial Railway, no per- son is allowed to get aboard cars while trains are in motion. Without ascertain- ing that all his train-crew were aboard, the conductor signalled the engineman to start his train from a station where it had stop- ped to discharge freight. One of the crew, who had been assisting in unloading, then attempted to board the moving train, and in doing so, he was injured. — Held, that the injury sustained by the employee was the direct and immediate consequence of Ms infrjfction of the regulation which he was, by law, obliged to obey and not the result of the fault of the conductor ; that by disobedience to the regulation, the em- ployee had voluntarily exposed himself to danger from the moving train ; that the negligence of the ■conductor in giving the signal to start the train was not an act for which the Government of Canada could be held responsible, and that its relation to the accident was too remote to be regarded as the cause of the injury. — ^Judgment ap- pealed from (15) Ex. 'C. R. ), affirmed. Turgeon v. The King, li., 588. 249. Railways — System of construction — Exposed switch-rods ■ — Dangerous contriv- ance — Verdict — Findings against evidence.'] — In accordance with what was shewn to be good railway practice the tracks in the company's yards were provided with switch- rods which were left uncovered and ele- vated a slight distance above the ties. While in performance of his work, during the day time, an employee sustained injuries which, it was alleged, happened in consequence of tripping on switch-rods while a ear was be- ing moved over the switch. In an action by him for damages, the jury based their verdict in his favour on a finding that the railway company had been negligent in per- mitting the switch-rods to remain in an exposed condition. — Held, per curiam, af- firming the judgment appealed from (8 West. W. R. 853). that the finding of negli- gence by the jury in regard to the switch- rods in question was against the evidence as to proper method of construction and could not be upheld. Idington and Brodeur, JJ., dissented on the view that evidence respecting the unsafe condition of the switch-rods had been properly submitted to the jury and their findings thereon ought not to be questioned. Mallory v. Winni- peg Joint Terminal's, liii, 323. 250. Railways — Ejecting trespasser from moving train — Imprudence — Liability for act of servant — Master and servant.] — ^As a train was moving away from a station, where it had stopped, the conductor ordered a brakesman to eject two trespassers from it. On proceeding to do so the brakesman found a man stealing a ride upon the nar- row ledge of the engine-tender, and in a scuffle which ensued, the plaintiff, who was on the edge of the ledge, but was not seen by the brakesman, owing to the darkness, was pushed off the train and injured. In an action for damages, the jury found that the brakesman had been at fault in attempt- ing to eject the man whom he saw while the train was in motion, and that it was "dubious" whether he was aware of the presence of the plaintiff in the dangerous position. — Held, per Fitzpatrick, C.J. and Idington and Anglin, J J. (affirming judg- ment appealed from (9 West. W. R. 1052) ), that the reckless indifference of the brakes- man, in circumstances in which he ought to have been aware of the presence of the plaintiff, was a negligent act for which the railway company was liable. — Per Davies and Brodeur, JJ., dissenting. — As it was not shewn by the evidence nor found by the jury that the brakesman was aware of the presence of the plaintiff in a dangerous posi- tion the plaintiff, being a trespasser, could not recover damages against the company for the injuries he sustained. Canadian Northern Railway Co. v. Diplock, liii., 376. 787 NEGLIGENCE. 788 251. Operation of railway — Assault on passenger — Duty of conductor, xxriv., 74. See Railwats. 252. Railways — Free pass — Consideration for transportatiorir— Misdirection — Findings of jury — New trial — Excessive damages — Art. SOS C. P. Q., XXXV., 68. See Damages. 258. Joint operation of railway — Master and servant — Negligence — Responsihility for act of joint employee — Traffic agreement — 62 d 6S Vict. c. 5 (D.), xxxvi., 655. See Railways. 254. Operation of railway — Unnecessary comiustiiles left on right of way — "Railway Act, 1903," ss. 118 (i) and Z39—R. S. O. (1906) c. 37, ss. 151 (/) and 297— Dam- ages iy fire — Point of origin — Charge by judge — Finding ly jury — New trial — Prac- tice — New evidence on appeal — Supreme Court Act, ss. 51 and 73, xxxix., 390. See Railways. 255. Railways — Constitutional law — Legislative jurisdiction — Application of statute — "The Prairie Fires Ordinance" — Con. Ord. N. W. T. (1898) o. 87, s. 2—N. W. T. Ord. 190S, (1st sess.) , c. 25 and c. SO, (2nd sess.)- — Works controlled by Par- liament — Operation of Dominion railway, xxxix., 476. See Railways. 256. Operation of railway — Yard siding — ■ Sloping platform — Private passage — Danger- ous way — Procedure at trial — Objections to charge to jury — Practice, xl., 194. See Peactice. 257. Government railway — Operation over other lines — Agreement for running rights — • Extensions and branches — "Public work" — Construction of statute — "Government Rail- ways Act"—R. S. C. 1906, c. S6, s. 80— "Exchequer Court Act" — R. S. C. 1906, u. UO, s. 20 (c), xl., 431. See Railways. 256. Railways — Negligence — Condition limiting liability — Contract to carry pas- senger. Cam. Cas. 10. See Railways. 259. Railway — Accident — Railway rules — Special instructions — Defective system — Comm,on law negligence — Witrkmen's Com- pensation Act — Damages, xliii., 494. See Railway. 260. Railway — Findings of jury — Volens — Pleading. Grand Trunk Ry. Co. v. Bru- lot, xlvi., 629. 261. Operation of railway — Condition of yard — "Lay-out" of concourse — Switching ■ — "Workmen's Compensation for Injuries Act," R. S. M., 1902, e. 178— Contributory negligence — Evidence — Volenti non fit in- juria — Non-suit — New trial, xlvii., 403. See Railways. 262. Electric railway — Breach of com- pany's rules. Winnipeg Electric Railway Co. V. Bill, xM., 667. 263. Shipment by railway — Carriage of passenger — Special contract — Notice of condition — Exemption from liability, xlvii., 622. See Railways. 264. Operation of railway — Contravention of statute— Protection of employees — For- eign cat — Defective equipment, xlvii., 634. See Railways. 265. Evidence — Onu» — Railway company — Excessive speed— "RaiVicay Act," s. 275 — 8 & 9 Edw. VII., c. 32, s. IS, xlviii., 561. See Evidence. 266. Action — Damages — Timber on pre- empted lands — Rights of pre-emptor — B. 0. "Land Act," R. S. B. C, 1911, c. 129, ss. 77 et seq. and 132 — Issue on appeal — Prac- tice — Fire set by railway locomotive — As- sessment of damages — Findings of trial judge, xlix., 33. See Damages. 267. Railways — Shipping contract — Carrying person in charge of live stock — Free pass — Release from liability — Ap- proved form — Action by dependents — Con- flict of laws — "Railway Act," R. S. C, 1906, c. 37, s. S40. C. P. R. v. Parent, li., 234. See Railways. 268. Railways — Shipping contract — Car- rying person in charge of live stock — Free pass — Release from liability — Approved form — Action by dependents — Conflict of laws — "Railway Act," R. S. C, 1906, c. 37, s. 340, li., 234. See Railways. 269. Railway company — Unloading cars — Limitation of action — Operation of rail- way— R. S. C. (1906), c. 37, s. 306. C. N. Ry. Co. V. Pszenicnzy, liv., 36. See Railways. 270. Railways — Construction of statute — "Railway Act," R. S. C, 1906, c. 37, s. 306 — Constitutional law — "Civil rights" — Jurisdiction of Dominion Parliament — Pro- vincial legislation — "Employers' Liability Act," R. S. M., 1913, c. 61 — Paramount authority — "Operation of railway" — Limita- tion of actions — Conflict of laws, liv., 36. See Railways. 271. Government railways — Construction and maintenance — Level crossings — Regula- tions by Governor in Council — Construction of statute — "Government Railways Act," R. S. C, 1906, c. 36, ss. 16, 49, 54— Act of third person — Liability of Crown for dam- ages, liv., 265. See Crown. 789 NEGLIGENCE. 790 21. Teamways. 272. Trial — Finding of jury — Exercise of statutory privilege — Use of highway — Op- eration of tramway.'] — Where on the trial of an action based on negligence, questions are submitted to the jury, they should be asked specifically to find what was the negli- gence of the defendant which caused the injury and general findings of negligence will not support a verdict unless the same is shewn to be the direct cause of the in- jury. — Where a street car company has by its charter privileges in regard to the removal of snow from its tracks, and the city engineer is given power to determine the condition in which the highway sbaU be left after a snow storm, a duty is cast upon the company to exercise its privilege in the first instance in a reasonable and proper way and without negligence. Mader v. Halifax Elecftric Tramway Co., xxxvii., 94. 273. Operation of tramway — Precautions for safety of passengers — Grossing cars — Sounding gong — Slackening speed at dan- gerous places — Neglect of rules — Passen- ger alighting from front of car — Contrihu- tory negligence.] — ^A passenger on a crowded tram-car, being near the front of the ear, on reaching his destination, made his way past several persons standing in the aisle and front vestibule and alighted from the front steps on the side next the parallel track upon which another car was coming at considerable speed in the opposite di- rection and was injured. The space be- tween the crossing cars was about 44 inches, and there was no rule of the com- pany to prevent passengers alighting from the front steps. The passenger was not aware of the car approaching from the op- posite direction when he alighte'd, and the motorman of the car which struck him had neglected to observe a rule of the company requiring that speed should be slackened, and the gong rung continuously while cars were passing each other on the double tracks. The courts below held (15 Man. Eep. 338), that the company was liable in damages on account of the motorman's negligence ; that the plaintiff had not been guilty of contributory negligence under the circumstances ; and that the company was obliged to take proper precautions for the safety of passengers, even after they had alighted upon the street beside the tracks. Without calling upon counsel for the re- spondent, the Supreme Court of Canada dis- missed the appeal with costs. Winnipeg Electric St. By. Co. v. Bell, xxxvii., 515. 274. Street railway — Excessive speed — Gong not sounded — Contributory negligence -~Funeral expenses — Damages.] — A passen- ger on a street car in Toronto going west alighted on the side farthest from the other track and passed in front of the car to cross to the opposite side of the street. The space between the two tracks was very narrow, and seeing a car coming from the west as she was about to step on the track, she recoiled, and at the same time the car she tad left started and she was crushed between the two. receiving injuries from which she died. In an action by her father and mother for damages the jury found that the company was negligent in running the east bound car at excessive speed and starting the west bound car and not sound- ing the gong in proper time. They found also that deceased was negligent, but that the company could, nevertheless, have avoid- ed the accident by the exercise of reasonable care. — Beld, that the case having been sub- mitted to the jury with a charge not ob- jected to by the defendants, and the evi- dence justifying the findings, the verdict for the plaintiffs should not be disturbed. The plaintiffs should not have had the fun- eral and other expenses incurred by the father of deceased allowed as damages in the action. Toronto Ry. Co. v. Mulvaney, xxxviii., 327. 275. Street railway — Rules — • Contribu- tory negligence — Motorman injured by his own mismanagement.] — Rule 212 of the rules of the London St. Ry. Co. provides that "when the power leaves the line the controller must be shut off, the overhead switch thrown and the car brought to a stop ..." A car on which the lights had been weak and intermittent for some little time passed a point on the line at which there was a circuit breaker when the power ceased to operate. The motor- man shut off the controller, but instead of applying the brakes, allowed the car to proceed by the momentum it had acquired, and It collided with a stationary car on the line ahead of it. In an action by the motor- man claiming damages for injuries received through such collision: — Held, that the ac- cident was due to the motorman's disregard of the above rule and he could not recover. Harris v. London St. Ry. Co., xxxix., 398. 276. Operaiion of tramway — Approach- ing cross-street — Rules of company — Charge of judge — Contributory negUgence — Findings of jury.] — A rule of the Toronto Rly. Co. provides that "when approaching crossings and crowded placei? where there is a possi- bility of accidents the speed must be re- duced and the car kept carefully under con- trol. Go very slowly over all curves, switches and intersections ; never faster than three miles an hour . . "'A girl on the south side of Queen street wished to between high banks of snow and ice. The car came behind the plain- tiff's vehicle, warning was given by sound- ing the gong, and the rate of speed was reduced ; plaintifC, however, delayed gertting off the tracks until the car was very close to him, and then, In tn'ming out, his Sleigh slid on the inclined banks, and was struck by the side of the car. "The courts below held that the tramcar had the right of way, that the injtiries were the direct result of the plaintiff's imprudence and dis- missed the action. Oh an eqtial division in opinion, the appeal stood dismissed witb costs. Yineent v. Montreal Street Ry. Co., Cout. Oas. 309. 279. Operation of tramway — Passenger riding on platform — Dangerous arrangement of car — Euidence.] — The actioil was brought by the widow of a person who lost his life in conSecjuence of an accident which occur- red While he was a passenger on one of the defendant company's tramcars. The evidence shewed that deceased was riding on th« front platform of the car which was, at the time of the accident, running at the rate of three or four miles an hoilr ; that, on approaching a switch, the car jolted and deceased was thrown off the platform underneath the wheel's ; that the doors of the car were open and were not protected by bars or other devices to secure the pro- tection of passengers. The jury returned a verdict in favour of the plaintiff and for $3,500 damages. — This verdict was set aside on the ground that no actionable negligence on the part of the company had been proved, and the action was dismissed. — ^By the judg- ment appealed from (15 B. C. Rep. 429), this judgment was reversed on the ground that there was some evidence before the jury to support their finding of negligence against the company, and also their fitndlng against contributory negligence. — The Supreme Court of Canada dismissed the appeal with costs. B. C. Electric Ry. Co. v. Dynes, xlvii., 395. 280. Street railway — Esbplosion — Defec- tive controller — Inspection.] — S. was riding on the end of the seat of an open street car in Toronto when an explosion occurred. The car was still in motion when other pas- sengers in the same seat, apparently in a panic, cried to S. to get off, and when he did not do so, endeavoured to get past bim whereby he was pushed off and injured. In an action for damages it appeared that the explosion was caused by a defective controller, and that the motorman at once cut off the current, but did not apply the brakes, and the jury found the company negligent in using a rebuilt controller in a defective condition and not properly in- spected, and the motorman negligent in not applying the brakes. — Held, affirming the judgment of the Court of Appeal (27 Ont. Li. R. 332), that the evidence justified the jury in finding that the controller had not been properly inspected and that a proper inspection might have avoided the accident. — Held, per Idington and Brodeur, JJ., Anglin and Davies, JJ., contra, that the motorman was guilty of negligence In not applying the brakes. Toronto Railway Co. v. Fleming, xlvii., 612. 281. Operation of tramway — Carelessness of • person injured — Reckless conduct of motorman.] — ^The carelessness of the plain- tiffs in driving across the tracks of a tram- way was, in this case, excused by the reck- less conduct of the defendants' motorman in failing to use proper precautions to avoid the con.sequences of their negligence after he had become aware of it. Judgment appeale.i 793 XEWSPAPEE. 794 from (11 D. L. E. 3; 4 West. W. R. 263), affirmed. City of Calgary v. Sarnovis, xlviii., 494. 282. Tramway company — Construction of works — Independent contraotor-^Dangeroiis system — Injury to property — 'Negligence — Exercise of statutory authority — Oorr6latiA>e duty — Damages — Special release.'] — ^A com- pany with statutory authority to construct a tramway acquired a strip of plaintiff's land for its right-of-way, the vendor grant- ing a release for all damages which he mighft sustain by reason of the construction and operation of the tramway and the severance of his farm. The company let the work to a contractor who, w the con- struction of the road-bed blasted away a hiBside by a method known as "top-lofting" thereby throwing large quantities of rock outside the right-of-way and upon plaintiff's adjoining lands in such a manner as to interfere with bis use thereof. This injury could have been avoided by proper precau- tious. — Held, affirming the judgment ap- pealed from (18 B. C. Rep. 81), Fitzpat- rick, iC.J., hesitante, that the company was responsible in damages for the omission of their contractor to take precautions neces- sary to prevent his blasting operations pro- ducing the injury to the plaintiff's lauds. — Held, further, that the general language of the release should be so construed as to restrict it to the matters in regard to which it had heen granted with reference to the proper exercise of the powers of the company to construct the tramway in question, and that it could not apply to injuries caused through negligence. — Per Duff, J. — Where statutory powers respect- ing the construction of works are being exercised through an independent fcontraetor, the correlative obligation of the beneficiaries of those powers to see that due care is taken to avoid unnecessary injurious consequences to the property of other persons is not dis- charged When their contractor fails to per- form that duty, and they are responsible accordingly. Hardaker v. Idle District Council ((1896) 1 Q. B. 335), and Boi- inson v. Beaconsfleld Rural Council ( (1911) 2 Ch. 188), referred to. 'Vancouver Power Co. V. Hounsome, xlix., 430. 283. Negligence — Operation of tramway — "Block and staff" system — Disregard of rules — Defective system.] — A motorman in the defendants' employ was injured in a col- lision with the car ahead of that upon which he was performing his work. The com- pany's operation rules provided that cars operated in the same direction, as "double- headers," unless block signals were in use, should be kept at least five minutes apart, except in closing up at stations; also that, when the view ahead was obscured cars should be kept under such control that they might be stopped within the range of vision, but the rule was not enforced. The plaintiff, one of the company's motormen, on a foggy night, ran his car into the rear of another car standing at the station he was entering, and sustained injuries for which he claimed damages, alleging a defective system. The defence set up contributory negligence on the part of the motorman, but made no al- lusion to the breach of these regulations. A judgment, entered on the verdict of the jury in favour of the plaintiff, was set aside by the Court of Appeal on thp ground that the injury had resulted in consequence of the plaintiff's disregard of the rules. — Held, that as the rules had not been enforced by the defendants nor set up in their pleadings they could not be relied upon in support of the charge of contributory negligence. — Judgment appealed from (17 B. C Rep. 498) reversed and a new trial ordered. Daynes v. British Columbia Electric Ry. Co., xlix., 518. 284. Operation of tramway — Carriage of passengers — Crossing cars — Undue speed — Sounding gong — Findings of jury. Montreal Street Railway Co. v. Deslongchamps, xxxvii., 685. 285. Operation of tramway — Evidence — ■ Findings of jury, Cout. Gas. 349. See Peactioe. 286. Operation of tramway — Injury to infant — Reckless running of car. Sydney and Glace Bay Ry. Co. v. Lott, xlii., 220. NEGOTIORTTM GESTIO. Liquidation of insolvent corporation — Distribution and collocation — Privileged claim — Expenses for preservation of estate — Fire insurance premiums — Arts. 371, S7S, J,19, 1043-10^6, 1201, 1994, 1996, 2001, 2009 C. C, xxxix., 318. See COMPANT. NBTVSPAPEB. 1. Trade mark — "Buster Brown" — Valid- ity of registration.] — The term "Buster Brown" or "Buster Brown and Tige" for use as the title to a comic section of a news- paper cannot be registered as a trademark. — The jndgment appealed from (12 Ex. C. R. 1) was affirmed, Davies and Duff, JJ., dissenting. New 'S^ork Herald Co. v. Ot- tawa Citizen Co., xli., 229. 2. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — Evidence — Presumption of malice — Bight of action, xxxix., 340. See Slander of Title. 3. Libel — Privileged publications — Re- ports of judicial proceedings — Public policy — Pleadings in civil actions — Proceedings not in open court, xli., 339. See Libel. 795 NEW TKIAL. r% NEW TRIAL. 1. Appeals, 1-8. 2. Criminai, Oases, 9-12. 3. Damages, 13-16. 4. Discretionaey Orders, 17-18. 5. Evidence, 19-34. 6. Findings op Fact, 34-43. 7. Misdirection, 44-58. 8. Practice, 59. 9. Verdict, 60. 1. Appeals. 1. Appeal — New trial — Alternative relief.^ — Where the plaintiff obtains a verdict at the trial and the defendant moves the Court of Appeal to have it set aside and judgment entered for him or in the alternative for a new trial, he cannot appeal to the Supreme Court if a new trial be granted. Mutual Re- serve Fund Life Association v. Dillon, xxxiv., 141. 2. Appeal — Jurisdiction — New trial — Discretion — Ontario appeals — 60 & 61 Vict, c. S4—R. S. C. c. 135, s. 27.]— Per Fitz- patrick, C.J., and Duff, J. — Section 27 of R. S. C. c. 135, prohibits an appeal from a judgment of the Court of Appeal for On- tario, granting, in the exercise of judicial discretion, a new trial in the action. Per Davies, J. — Under the rule in Town of Au- rora V. Village of Markham (32 Can. S. C. R. 457) no appeal lies from a judgment of the Court of Appeal for Ontario on motion for a new trial unless it comes within the cases mentioned in 60 & 61 Vict. c. 34, or special leave to appeal has been obtained. Appeal from judgment of the Court of Ap- peal (11 Ont. L. R. 171) quashed. Canada Carriage Co. v. Lea, xxxvii., 672. 3. Appeal — Alternative relief — Judg- ment granting one — Final judgment.] — Where the party failing at the trial moves the court of last resort for the province for judgment or, in the alternative, a new trial, he cannot appeal to the Supreme Court of Canada from the judgment granting the latter relief. Mutual Ins. Co. v. Dillon (34 Can. S. C. R. 141) followed. Ainslie Min- ing and Ry. Co. v. McDougall, xl., 270. 4. Appeal — Jurisdiction — Alternative re- lief.] — On the case being called, counsel for respondent suggested that the court had no jurisdiction to entertain the appeal. Coun- sel for the appellant, after consideration, stated to the court that he was unable to distinguish the case from that of The Mu- tual Reserve Fund Life Insurance Associa^ tion V. Dillon (34 Can. S. C. R. 141), and the appeal was quashed without costs. Cor- poration of Delta V. Wilson, COut. Cas. 334. 5. Application for nonsuit — Appeal — Jur- isdiction — New trial ordered.]— On appeal to the Court of Appeal for Ontario for entry of nonsuit plaintiff urged that if any relief was granted, it should not be a new trial. The Court of Appeal granted a new trial under the judicature rules. The de- fendants appealed in order to obtain the nonsuit asked for, and respondent contended that the appeal was not from a judgment on a motion for a new trial under the statute, as no such motion was made ; also, that it was made in respect to the exercise of a judicial discretion. Appellants claimed that the contention of plaintiff in the Court of Appeal amounted to a motion for a new trial and that since the amendment to the stat- ute, in 1891, judicial discretion did not enter into the question. The appeal was quashed without costs. Toronto Ry. Co. v. McKay, Cout. Gas. 419. 6. Floating saw-logs in rivers and streams —Damages— R. 8. N. S. (1900), o. 95, s. 17 — Procedure — Charge to jury — Report by trial judge — New trial — Review on appeal, xxxiv., 265. See Appeal; Rivers and Streams. 7. Assessment of damages — Reasons for judgment — Decree of Court of Appeal, xxxvi., 159. See Damages. 8. Appeal — Court of Review — Appeal to Privy Council — Appealaile amount — Amend- ment to statute — Application — Notice of appeal — Marine insurance — Constructive total loss — Trial by jury — Misdirection. Sedgeivick v. Montreal, xli., 639. 2. Criminal Cases. 9. Criminal law — Trial for murdei — Im- proper admission of evidence — -New trial — Substantial wrong or miseoirriage — Crimi- nal Code, s. 1019.] — By section 1019 of the "Criminal Code" it is provided that "no conviction shall be set aside or any new trial directed, although it appears that some evidence was improperly admitted or re- jected or that something not according to law was done at the trial, . . . unless, in the opinion of the court of appeal, some sub- stantial wrong or miscarriage was thereby occasioned on the trial." — Held, reversing the judgment appealed from (16 B. C. Rep. 9), Davies and Idington, J J., dissenting, that where evidence has been improperly ad- mitted or something not according to law has been done at the trial which may have operated prejudicially to the accused upon a material issue, although it has not been and cannot be shewn that it did, in fact, so operate, and although the evidence which was properly admitted at the trial war- ranted the conviction, the court of appeal may order a new trial. Allen v. The King, xliv., 331. 10. Criminal law — Indictment for murder — Trial — Evidence — Criminal intent — Pro- vocation ■ — "Heat of passion" — Charge to jury — Misdirection — Reducing charge to manslaughter — "Substantial wrong" — Crimi- nal Code, ss. 261, 1019 — Appeal---Questions to be reviewed.]— On a trial for the murder of a police officer there was evidence that E. and J. had set out from their home, dur- itag the night when the deceased was killed, with the intention of committing theft; .T. and his wife testified that, on returning '(97 NEW TEIAL. 798 home, E. had told them that a man, whom he supposed to a secret-police constable, had pointed a pistol at him and told him to "go to hell" and that he had shot him. The defence was rested entirely upon alibi and the accused testified on his own behalf stat- ing that he had been at home during the whole of the night in question, but making no mention of any facts concerning the shooting. In his charge the trial judge re- viewed the evidence, in a general way, and told the jury that, upon the evidence ad- duced, they must either convict or acquit of the crime of murder, that they could not return a verdict of manslaughter, that if they believed J.'s account of what happened to be substantially true they should convict of murder ; and he did not instruct the jury as to what, in law, constituted manslaugh- ter nor as to circumstances on which the verdict might be reduced to manslaughter. E. was convicted of murder. — Held, Duff, J., dissenting, that, on the evidence, the charge of the trial judge was right, and that the omission to instruct the jury in respect to manslaughter did not occasion any sub- stantial wrong or miscarriage which could justify the setting aside of the conviction nor a direction for a new trial. — Per Pitz- patrick, C.J., and Idington, J. — In a crimi- nal appeal, it is doubtful whether any ques- tion except that upon which there was a dissent in the court below could be reviewed on an appeal to the Supreme Court of Can- ada. — Per Duff, J., dissenting, — In the cir- cumstances of the case, the effect of the charge was to withdraw from the jury some evidence which ought to have been consid- ered by them and which, if considered by them, might have influenced them favourably towards the accused in arriving at their verdict ; consequently, some substantial wrong was thereby occasioned ofi the trial and the conviction should not be permitted to stand. Eberts v. The King, xlvii., 1. 11. Criminal law — Indictment for murder — Trial— Charge to jury — Misdirection — Constructive murder — Natural consequence of act.] — On the trial of an indictment for murder of one Kenneth Lea it was proved that the prisoners, who had been drinking, came on the deceased's lawn and commenced to shout and sing and use profane and in- sulting language towards him. He twice warned them away, and finally appeared with a loaded gun threatening to shoot. A rush was made towards the verandah where he stood, when he took hold of the barrel of the gun and struck one of the prisoners with the stock. The gun was discharged into his body and there was evidence that the prisoners then maltreated him and his wife. He was taken to a hospital in Halifax where he died shortly after. The trial judge in charging the jury instructed them that the prisoners were doing an unlawful act in trespassing on the property of deceased and that if they were actuated by malice it would be murder, if not it was manslaughter, draw- ing their attention especially to sections 256 and 259 (6) of the Criminal Code. The prisoners were found guilty of murder. On appeal from the decision of the Supreme CouTt of Nova Scotia on a reserved case: — Held, that the above direction to the jury ignored the requirements of the Code formu- lated in sub-section (d) of section 259, to which the Judge should also have drawn their attention directing them to find whe- ther or not the prisoners knew, or ought o have known, that their acts were likely to cause death, and his failure to do so left his charge open to objection and constituted misdirection for which the prisoners were entitled to a new trial, droves v. The King, xlvii., 568. 12. Criminal law — Indictment — Separate counts — Verdict — Conspiracy — Extra- ditable offence — Inadmissible evidence — Conviction — Inconsistency — - Irregularity of procedure — Charge to jury — Address of counsel — Substantial wrong or miscarriage —"Criminal Code," s. 1019 — Penalty.} — On an indictment containing several counts, in- cluding charges for theft, receiving stolen property and obtaining money under false pretences, in respect of which the person ac- cused had been extradited from the United States of America, evidence was admitted on behalf of the Crown, for the purpose of shewing mens rea, which involved partici- pation of the accused in an alleged con- spiracy. The principal objections urged against a conviction upon the charges men- tioned were (a) that by the manner in which the trial had been conducted the jury may have been given the impression that the accused was on trial for conspiracy, a non- extraditable offence; (6) that misstatements and inflammatory observations had been made by counsel for the Crown in addres- sing the jury ; and (c) that, in his charge, the trial judge had failed to correct impres- sions which may have been thus made on the minds of the jury or to instruct them that portions of the evidence admitted in regard to other counts ought not to be considered by them in disposing of the charge of ob- taining money under false pretences. — Held, that, as there was sufficient evidence to sup- ' port the verdict of the jury on the charge of obtaining money under false pretences, quite apart from the irregularities alleged to have taken place at the trial, no sub- stantial wrong or miscarriage had been oc- casioned and there could be no ground for setting aside the conviction or directing a new trial under the provisions of section 1019 of the Criminal Code. — Judgment ap- pealed from (11 West. W. R. 46), affirmed. Kelly V. Tlie King,- liv., 220. 3. Damages. 13. Tort — Right of action — Damages — Pleading — Practice — Withdrawal of case from jury — Costs.l — In a case where it would be open to a jury to find that an ac- tionable wrong had been suffered and to award damages, the withdrawal of the case from the jury is improper and a new trial should be had.' — The Supreme Court of Can- ada reversed the judgment appealed from (12 B. C. Rep. 476), which had affirmed the judgment at the trial withdrawing the case from the jury and dismissing the action and allowing the plaintiff his costs up to the time of service of the statement of defence, costs being given against the defendant in all the courts and a new trial ordered. Davies 799 NEW TEIAL. SOO and Maclennan, JJ., dissented and, taking the view that the refusal, though illegal, hud not been made maliciously, considered that, on that issue, the plaintiff was en- titled to nominal damages, that, in other respects, the judgment appealed from should be affirmed and that there siiould be no costs allowed on the appeal to the Supreme Court of iCanada. (Appeal to Privy Council dis- missed, 9th July, 1908.) Norton v. Fulton, xxxix., 202. 14. Negligence — Operation of railway — Damages — Solatium doloris — Verdict.] — The court refused to order a new trial or reduction of damages, under the provisions or articles 502, 503, C. P. Q., where it did not appear that, under the circumstances, the amount of damages awarded by the ver- dict was so grossly excessive as to make it evident that the jury had been led into error or were influenced by improper motives. Da- vies, J., dissented in respect of that part of the verdict awarding damages in favour of one of the sons who was almost 21 years of age and earning wages at the time deceased was killed. — Quwre. — In an action under article 1056 C. C, can a jury award dam- ages in solatium doloris f Roiinson v. Fhe Canadian Pacific Railway Co. ( [1892] A. C. 481) referred to. Canadian Pacific Railway Co. V. Lachance, xlii., 205. 15. Negligence — Street railway — Exces- sive speed — Oong not sounded — Contriiu- tory negligence — Damages, xxxviii., 327. See Negligence. 16. Operation of railway — Unnecessary combustiiles left on right of way — "Railway Act, 1903," ss. 118 U) and 239— R. 8. C. (1906) 0. 37, ss. 151 U) and 297— Damages iy fire — Point of origin — Charge iy judge — Finding iy jury — New trial — Practice — New evidence on appeal — Supreme Court, Act, ss. 51 and 73, xxxix., 390. See Railways. 4. DiSCEETIONAEY OEDEKS. 17. Appeal — Order for new trial — Weight of evidence — Discretion — New grounds on appeal.] — Where the court whose judgment is appealed from ordered a new trial on the ground that the verdict was against the weight of evidence: — Held, that this was not an exercise of discretion with which the Supreme Court of Canada would refuse to interfere and the verdict at the trial was restored. — The argument of an appeal to the Supreme Court of Canada must be based on the facts and confined to the grounds relied on in the courts below. Confederation Life Association v. Borden, xxxiv., 338. 18. Practice — Addiction of evidence — Cross-eieamination at trial — Vexatious and irrelevant questions — Discretionary order — Propriety of review.] — The judge presiding at tiie trial of a cause has a necessary dis- cretion for the protection of witnesses un- der cross-examination and, where it does not appear that he has exercised that discretion improperly, his order ought not to be inter- fered with on an appeal. Hence, an ap- pellate court is not justified in ordering a new trial on the ground that counsel has been unduly restricted in cross-examination by a question being disallowed which did not, at the time it was put to the witness, have relevancy to the issues. — Idington, J., dissented on the ground that, under the cir- cumstances of the case, counsel was entitled to have the question answered. Brounell v. Brounell, xlii., 368. 5. Evidence. 19. Negligence — Electric wire— Trespas- ser — EvidenQe-^Contriiutory negligence.] — Ahearn & Soper had a contract to illumi- nate certain buildings for the visit of the Duke of York to Ottawa, and obtained power from the Ottawa Electric Co. For the pur- poses of the contract wires were strung on a telephone pole and fastened with tie-wires, the ends of which were uninsulated. R., an employee of the O. E. Co. was sent by the latter to place a transformer on the same pole and, in doing so, his hands touched the ends of the tie-wire by which he received a shock and fell to the ground being seriously injured. To an action for damages for such injury A. & S. pleaded that R. had no right to be on the pole and was a trespasser, and on the trial their counsel urged that the work he was doing was connected with the lighting of a building in the city. The Court of Appeal held that this defence was estab- lished and dismissed the action. — Held, re- versing the judgment appealed from (6 Ont. L. R. 619i>), that the counsel's address did not indicate that the building referred to was not one of those to be illuminated under the contract and the evidence did not shew that R. was not engaged in the ordinary business of his employers and the case should be retried, the jury having failed to agree at the trial.^A rule of the O. E. Co. di- rected every employee whose work was near apparatus carrying dangerous currents to wear rubber gloves which would be furnished on application: R. was not wearing such gloves when he was hurt. — Held, that the mere fact of the absence of gloves was not such negligence on R.'s part as would war- rant the case being withdrawn from the jury ; that, as to A. & S., R. was not bound by said rules ; and that though his failure to take such precautions was evidence of neg- ligence he had a right to have it left to the jury and considered in connection with other ffiets in the case. Randall v. Ahearn d Soper, xxxiv., 698. 20. Evidence — Verdict — Conditions Policy of life insurance — Misrepresentation 1 — Unless the evidence so strongly predomi- nates against the verdict as to lead to the conclusion that the jury have either wilfully disregarded the evidence or failed to under- stand or appreciate it, a new trial ought not to be granted. Metropolitan Life Ins Co v Montreal Coal and Towing Co., xxxv., 266 And see Evidence. 801 NEW TEIAL. 802 21. Contradictory evidence — Wilful tres- pass — Rule in assessing damages — Practice — Adding party — Reversal on appeal] — In an action for damages for entry upon a placer mining claim and removing valuable gold bearing gravel and dirt, the trial judge found the defendants guilty of gross care- lessness in their work, held that they should be accounted wilful trespassers, and referred the cause to the clerk of the court to assess the damages. The referee adopted the severer rule applicable in cases of fraud in assessing the damages. The Territorial Court in banco reversed the trial judge in his findings of fact upon the evidence. — Held, reversing the judgment appealed from, that the trial judge's findings should be sus- tained with a slight variation, but that the referee had erred in adopting the severer rule against the defendants in assessing the dam- ages, and that his report should be amended in view of such error. — Semble, that the re- cord iind pleadings should be amended by adding the plaintifiE's partner as co-plaintifiE. — Held, per Taschereau, O.J., dissenting, that although not convinced that there was error in the judgment of the trial judge which the court in banco reversed, while at the same time it did not appear that there was error in the judgment in banco, yet the latter judgment should stand, as the court in banco should not be reversed unless the Supreme Court, on the appeal, be clearly satisfied that it was wrong. (Leave to appeal to Privy Council refused, 4th Aug., 1905). Kirkpatrick v. McNamee, xxxvi., 152. 22. Evidence — Admissibility — Harmless error — New trial.'\ — The action was for price of goods sold and delivered, and the defence that the goods were received by de- fendant as plaintiffs' manager and not otherwise. A new trial was ordered on the ground that plaintiffs' books of account were improperly received In evidence against the defendant. The Supreme Court of Can- ada reversed the judgment appealed from (37 N.S. Kep. 361), and restored the verdict at the trial, holding that the books were received on the taking of evidence under commission by the express consent of both parties, and their reception could not after- wards be objected to on the general ground that they were irrelevant and immaterial to the issue. Carstens v. Muggah, xxxvi., 612. 23. Jury trial — Judge's charge — Practical •withdrawal of case — Evidence — New trial.] —On trial of an action against a surety, the defence was that he tad been discharged by the plaintiff's dealings with his principal. The trial judge directed the jury that the facts proved in no way operated to dis- charge him ; and that while, if they could find any evidence to satisfy them that he was relieved from liability they could find for defendant, he knew of no such evidence, and it was not to be found in the case. — Held, that the disputed facts were prac- tically withdrawn from the jury, and as there was -evidence proper to be submitted and on which they might reasenably find for defendant there should be a new trial. Wood V. Rockwell, xxxviii., 165. 24. Title to land — Plan of survey — Evi- dence — Onus of proof — Findings of jury ■ — Error — New trial.] — Where it appeared thai in directing the jury, at the trial, the judge attached undue importance to the effect of a plan of survey referred to in a junior grant as against a much older plan upon which the original grants of the lands In dispute depended and that the findings were not based upon evidence sufifcient in law to shift the onus of proof from the plaintiff and were, likewise, insufiicient for the taking of accounts in respect to trespass and con- version of minerals complained of : Held, affirming the order for a new trial made by the judgment appealed from (1 East. L. K. 293), that, in the absence of evidence of error therein, the older grants and plan must govern the rights of the parties. Bart- lett V. Nova Scotia Steel Co., xxxviii., 336. 25. Sale of goods — Set-off — Debtor and creditor — Partnership — Evidence — Credi- tor's books of account — Admissibility — Prac- tice — New trial — Reducing verdict in lieu of new trial.] — ^The plaintiffs were partners engaged in getting out timber for the de- fendant during three years ending 1882, and on the transaction were entitled to be paid by the defendant $3,427.05, and brought their action to recover same. During 1883 and 1884 goods were sold and delivered by the defendant to the plaintiff P. O'B. to an amount exceeding the plaintiffs' claim against him. The defendant filed a set-off claiming that the goods sold to P. O'B. after 1882, were sold for and on behalf of the partnership. The plaintiffs claimed that the goods were sold to P. O'B. personally. At the trial defendant's books were placed in his hands by his counsel to refresh his memory as to the set-off. Plaintiffs coun- sel cross-examined him on the books of ac- count for the purpose of shewing that the entries during 1883 and 1884 were charged to the plaintiff P. O'B. personally, and de- fendant's counsel in reply examined the de- fendants on the books to shew that some partnership entries prior to 1882 similarly appeared charged to the plaintiff P. O'B. The trial judge, in charging the jury, di- rected them to inspect the books for the purpose of testing the defendant's account of the transaction. The jury found for the defendants. Plaintiffs moved for a new trial on the ground that the trial judge had allowed the defendant's books to go in evidence to support his claim that the plain- tiffs were partners. The full court ordered that there should be a new trial if the de- fendant refused to reduce his verdict on the set-off by $1,200. On appeal by the plaintiffs to the Supreme Court of Canada: — Held, Strong and Gwynne, JJ., dissenting, that the appeal should be dismissed with costs.-r-ifeM, per Patterson, J., that the books having been put in evidence by the plaintiffs to shew the change in the defend- ant's mode of desiling with them, after 1882, which indicated a recognition by the defendant of the partnership having ceased, it was proper for the defendant, for the purpose of rebutting this inference, to ex- hibit the earlier accounts to support his assertion that the same mode of bookkeeping S.C.D.— 26 803 NEW TRIAL. 804 had prevailed through all the years, and al- though' there were some expressions of the trial judge which were susceptible of the construction that the jury were at liberty to inspect the books for the purpose of determining whether or not there was a partnership, after 1882, yet the jury was probably not misled thereby. — Held, per Patterson, J., that upon a moition for a Hew trial in an action for goods sold and delivered it is open to the court to refuse a new trial, although satisfied that the find- ings of the jury as to some of the items of the account are not supported by the evi- dence, if the successful party donsents to have the verdict reduced to the proper amount. — Held, per Gwynne, J., dissenting, that the practice of refusing to grant a new trial upon condition of the party in whose favour the verdict has been rendered by a jury agreeing to accept a reduced amount named by the court has always been con- fined to cases of excessive damages only. (27 N. B. Rep. 145, aflirmed.) O'Brien v. O'Brien, (Cout. Dig. 554 ; 992) ; Cam. Gas. 282. 26. Negligence — Operation of railways — Highway crossings — Inconsistent findings ■ — Questions to jury — Practice — Mistrial.'] — Where the findings of a jury were conflict- ing and inconsistent to such a degree as to satisfy the court that there had been a mis- trial, a new trial was directed, Idington, J., dissenting. ' Grand Trunk Ry. Co. v. Moore, Cout. Cas. 401. 27. Evidence — Improper admission — Un- corroborated testimony of plaintiff — Contra- dictory evidence — Verdict against weight of evidence — Practice, Cam. Cas. 214. See Evidence. 28. Ships and shipping — Material used in construction — Safe of goods — Contract — Principal and agent — -Misrepresentations — Mistake— Conversion — Trover — Evidence — Misdirection — Ship's husband — Pledging credit of owners — Necessary outfitting at home port, Cout. Cas. 131. See Ships and Shipping. 29. Operation of railway — Level crossing — Negligence — Statutory signals — Findings against weight of evidence — New trial ■ — Practice, 8 Can. Ry. Cas. 61. See Negligence. 30. Evidence — Cross-examination — Dis- cretionary order. Brownell v. Brownell, xlii., 368. See Practice. 31. Evidence — Privilege — Notary — Jury trial — Practice — Charge to jury — Objections after verdict — Misdirection — Discretion. Barthe v. Huard, xlii. 406. See Pbactice. 32. Rejection of evidence — Withdrawal of case from jury, xlix., 518. See Pbactice and Peoceduee. 33. Negligence — Defective system — Injury to employee — Evidence — Verdict — Prac- tice — Ecoception to judge's charge — New points on appeal, li., 216. See Negligence. 34. Damages — Verdict — Excessive award — Personal injuries — Complete reparation — Loss of prospective earnings — Pain and suffering — Evidence — Mortuary tables — Practice — Jury, lii., 281. See Damages. 6. Findings op Fact. 35. Finding of jury — New trial — Prin- cipal and agent — Qualification of juror — Waiver of objection — Written contract — Collateral agreement by parol.'] — ^An agent employed to sell a mine for a commission failed to effect a sale, but brought action based on a verbal collateral agreement by the owner to pay "expenses" or "expenses and compensation" in case of failure. The jury found in answer to a question by the judge that "we believe there was a promise of fair treatment in case of no sale." — Held, reversing the judgment in appeal (9 B. C. Rep. 303), Taschereau, C.J. and Killam, J., dissenting, that this finding did not establish the collateral agreement, but was, if anything, opposed to it, and the real issue not having been passed upon there must be a new trial. — If a juror on the trial of a cause is allowed without chal- lenge to act as such on a subsequent trial, that is not per se a ground for setting aside the verdict on the latter. Dunsmuir v. Lowenburg, Harris d Co., xxxiv., 228. 36. Negligence — • Master and servant — Findings of jury — New trial.] — In construct- ing the bins for an elevator a staging had to be raised as the work progressed by ropes held by men standing on the top until it could be secured by dogs placed underneath. When secured, workmen stood on the stag- ing and nailed planks to the sides of the bin. The planks were run along a tramway at the side of the bins by rollers and thrown off to the side of the bin farthest from the tramway. While two men on the top of the bin were holding up the staging until it could be secured, a plank on top of the adjoining pile fell off. In falling it hit the men on top of the bin, and they were pre- cipitated to the bottom and one of tbem killed. In an action by his widow against the contractor for building the elevator, twenty-five questions were submitted to the jury and on their answers a verdict was entered for the plaintiff. — Held, Idington, J., dissenting, that while the falling of the plank caused the accident there was no find- ing that the same was due to the negligence of the defendant nor any that the death of deceased was due to negligence for which, under the evidence, defendant was responsi- ble. Therefore, and because many of the questions submitted were irrelevant to the issue and may have confused the jury, there should be a new trial. Jamieson v. Harris XXXV., 625. ' 37. Findings of jury — Alternattve relief —Cross-appeal] — Where a defendant ob- tained an order for a new trial in the court below and the plaintiff appealed to the Supreme Court of Canada, on a cross- appeal by the defendant the order for a new trial was set aside and the action was 805 NEW TEIAL. 806 dismissed. — ^Cf. The Mutual Reserve Fund Life Association v. Dillon (34 Can. S. C. R. 141). Andreas v. Canadian Pacific By. Co., xxxvii., 1. And see Negligence. 38. Negligence — Operation of tramway — Approaching cross-street — Rules of com- pany — Charge of judge — Contributory negli- gence — Findings of jury.] — A rule of the Toronto Rly. Co. provides that "when ap- proaching crossings and crowded places where there is a possibility of accidents the speed must be reduced and the car kept carefully under control. Go very slowly over all curves, switches and intersections ; never faster than three miles an hour . . . " A girl on the south side of Queen street wished to cross to University avenue which reaches but does not cross Queen. She saw a car coming along the latter street from the east, and thought she had time to cross, but she was struck and severely, injured. On the trial of an action for damages the judge in his charge said : "It is not a question, gentlemen of the jury, as to the motorman's duty under the rule, it is a question of what is reason- able for him to do." The jury found that defendants were not guilty of negligence ; that plaintiff by the exercise of reasonable care could have avoided the injury ; and that she failed to exercise such care by not taking proper precautions before crossing. The action was dismissed at the trial, a Divisional Court ordered a new trial on the ground that the judge had misdirected the jury in withdrawing from their considera- tion the rules of the company. The Court of Appeal restored the judgment at the trial. — Held, affirming the judgment of the Court of Appeal (15 Ont. L. R. 195), which set aside the order of the Divisional Court for a new trial (13 Ont. L. R. 423), Iding- ton, J., dissenting, that the action was properly dismissed. — Held, per Girouard and Duff, JJ. The judge's cliarge was open to objection, but as under the findings of the jury and the evidence plaintiff could not possibly recover, a new trial should be re- fused. — Per Davies, J. — There was no mis- direction. The jury were not led to believe • that the rules were not to be considered, but only that they should not be the stand- ard as to what was or was not negligence, which question should be decided on the facts proved. — Per Maclennan, J. — The place at which the accident occurred, where University avenue meets Queen street, is not a crossing or intersection within the meaning of the rules, and they do not apply in this case. Brenner v. Toronto Ry. Co., xh, 540. 39. Employer's liability — Negligence — Answers by jury — "Volenti non fit injuria" — Issue undecided — Practice — B. C. Sup. Ct. Rules, 0. 58, r. 4-] — On tl*e defence of "volens," in an action for damages by an employee on account of injuries sustained in the course of his employment, the ques- tion which has to be considered is whether the plaintiff agreed that, if injury should befall him, the risk was to be his and not his master's. Smith v. Baker A Sons ([1891] A. C. 325), referred to.— In an action to recover damages for injuries sus- tained by the ehgine-man in charge of the company's steam shovel in use on the con- struction of their works, questions were submitted to the jury to which they gave answers negativing contributory negligence by the plaintiff and finding the company negligent in failing to provide a guard on part of the gearing, and in leaving it un- covered, but they did not answer one of the questions submitted to them, viz: "Did the plaintiff know and appreciate the risk and danger and did he voluntan'lv en- counter them?" The defence resting upon this issue was duly presented at the trial and evidence submitted to support it. — Held, that, although the Court of Appeal for British Columbia, under Order 58, rule 4, of the "Supreme Court Rules, 1906," has power to draw inferences of fact and to give any judgment and make any order which ought to have been made in the trial court, and to make such further or other order as the case in appeal may require, nevertheless, it should not undertake the functions of a jury where it may be rea- sonably open to them to come to more than one conclusion on the evidence. Therefore, in the circumstances of the present case, there should he an order for a new trial to have the issue of volens decided. Paquin v. Beauclerk ([1906] A. C. 148) and Slceate V. Slwters (30 Times L. R. 290), referred to. — Judgment appealed from reversed. Mc- Phee V. Esquimau and Nanaimo Ry. Co., xlix., 48. 40. Master and servant — Contract of ser- vice — Termination by notice — Incapacity of servant — Permanent disability — Findings of jury — Weight of evidence, xxxiv., 366. See Masteb and Sebvant. 41. Negligence — Operation of railway — Proximate cause — Imprudence of person in- jured, XXXV., 296. See Negligence. 42. Negligence — Trial — Finding of jury — Exercise of statutory privilege, xxxviii., 94. See Negligence. 43. Marine insurance — Abandonment — Repairs — Boston clause — Findings of jury — New trial — Practice — Evidence taken by commission — Judicial discretion.'] — Ins. Go. of North America v. McLeod; Western Ass. Co. V. McLeod; Nova Scotia Marine Ins. Go. V. McLeod, Oout. Cas. 214. 7. MiSDIBBCTION. 44. Unfair trial — Misdirection — Judge's charge — Bias — Prejudice — Practice — Mo- tion for new trial— Disposal of whole case.] — In an action for a partnership account the plaintiff claimed to be a partner in a gold mining business with the defendants H. and T., and alleged that he had been fraudulently _ induced by the defendants to surrender mining leases which were in the name of himself and T. by the statement made by H. that it was necessary so to do to flibtain new mining leases of the same property from the Crown, and that without 807 NEW TEIAL. 808 his knowledge or consent, T. obtained the new leases to be granted to himself without any mention of the plaintiff. The defend- ants claimed that the agreement for part- nership was conditional upon certain money advances to be made by the plaintiff, and that hfe having failed to carry out this con- dition, the plaintiff's membership in the partnership was put an end to. In charg- ing the jury the trial judge in vigorous language made it clear that he believed the plaintiff's story, but concluded his charge by expressly telling the jury that they were not to be influenced by his view of the facts. — Held, reversing the judgment of the court below, that the motion for a new trial should be granted and the judgment below set aside. — Per Strong and Gwynne, JJ., that in a case tried by a jury an ap- pellate court might finally dispose of the case upon the facts without sending it back for a new trial. — Per Kitchie, C.J., — The Supreme Court, as an appellate court for the Dominion, should not approve of such strong observations being made by a judge as were made in this case, in effect charging upon the defendants fraud not set out in the pleadings and not legitimately in issue in the cause. — Per Strong, Four- nier, Taschereau, Gwynne and Patterson, JJ., that the case was essentially an equity case, and one in which a jury could ad- vatageously have been dispensed with. Hard- man V. Putnam (xviii., 714) ; Cam. Oas. 112. 45. Assignment — Insolvency — Fraud — Right of action — Misdirection — Non-direc- tion — Accounts — Praotice.J — W., a trader, while in financial diiBculties, transferred bis property to B., one of his creditors, and sub- sequently made an assignment of his pro- perty in trust for the benefit of all his creditors. The trustee for the creditors brought an action to have the conveyances set aside. On the trial, after the evidence on hoth sides was concluded, plaintiff's counsel asked the judge to instruct the jury as to what, on the evidence of this case, might constitute fraud under Statute of Elizabeth, and he also asked that an ac- count should be taken of the dealings be- tween W. and B. The judge refused. Hie jury stated that they were unable to deal with the accounts, but found that there was no fraud in the transaction between W. and B. — Held, that ^the refusal of the judge to charge the jury as requested, amounted to a misdirection, and there should be a new trial ; that the case could not be prop- erly decided without taking the accounts, and that it could be more properly dealt with as an equity case. — Qucere, per Pat- terson, J. — Whether an assignee for the benefit of creditors was entitled to main- tain the action if there was no provision in the statute relating to assignments for the benefit of creditors, entitling him so to do. Griffiths V. Boscowitz (xviii., 718) ; Cam. Cas. 245. 46. Practice — Jury trial — Findings (M to negligence — Questions as to special grounds — Judge's charge — Non-direction — Misdi- rection — Application of law to facts.] — Upon a trial by jury, the judge in directing the jury as to the law is bound to call their attention to the manner in which the law should be applied by them according to their findings as to the facts, the extent to which he should do so depending on the circum- stances of the case he is trying, and, where the form of the charge was defective in this respect, and, consequently, left the jury in a confused state of mind as to the ques- tions in issue, there should be a new trial. Judgment appealed from (10 B. C. Kep. 473) affirmed, Davies, J., dissenting. — Held, per Nesbitt, J., that in an action founded on the negligence it is advisable that spe- cial questions should be submitted to the jury to enable them to state the special grounds on which they find negligence or no negligence. Spencer v. Alaska Packers' As- sociation, XXXV., 362. 47. Charge to the jury — Misdirection — Bias.'i — Where the charge of the trial judge to the jury shewed passion and bias and was improper, a new trial was ordered. Judgment appealed from (37 N. B. Rep. 103), reversed, Davies, J., dissenting. Bustin V. Thome, xxxvii., 532. And see Appf.at.. 48. Misdirection — Questions for jury — Verdict on issues — Damages.] — An order for a new trial should not be granted merely on account of error in the form of the ques- tions submitted to the jury where no pre- judice has been suffered in consequence of the manner in which the issues were pre- sented by the charge of the judge at the trial, and the jury has passed upon the questions of substance. — The judgment appealed from (18 Man. R. 134), was af- firmed, the Ohief Justice dissenting, and Davies, J., hesitante, as to the quantum of the damages awarded. Winnipeg Electric Ry. Co. V. Wald, xli., 431. 49. Evidence — Privilege — Notary — Jury trial — Practice — Charge to jury — Objections after verdict — Misdirection — Discretion.] — H., to qualify as candidate in a municipal election procured from a friend a deed of land giving him a contre-lettre under which he collected the revenues. Having sworn that he was owner of real estate to the value of $2,000 (that described in the deed), B. in bis newspaper accused him of per- jury, and he took action against B. for libel. On the trial the deed to H. was produced, and the existence of the contre- letter proved, but the notary having the custody of both documents refused to pro- duce the latter, claiming privilege on the ground that it was a confidential docu- ment. The trial judge maintained this claim, but oral evidence was admitted proving to some extent what the contre-lettre contain- ed. A verdict having been given in favour 01 H. — Held, that the trial judge erred in ruling that the notary was not obliged to produce the contre-lettre, as it was impos- sible without its production to determine what, if any, limitations it placed upon the deed, and there should be a new trial ^B in his newspaper article also accused H of having been drunk during the election' and the judge, in charging the jury, said •' You should consider the case as if the charge of drunkenness had been made against yourselves, your brother or your friend"—- 809 NOTABY. 8ia SeH, that this was calculated to mislead the jury, and was also a reason for grant- ing a new trial. — If objection to one or more portions of the judge's charge is not presented until after the jury have rend- ered their verdict, the losing party can- not demand a new trial as of right, but in such case an appellate court, to prevent a miscarriage of justice, may order a new trial as a matter of discretion. Barthe v. Huard, xlii., 406. 50. Charge to jury — Constitutional law — Legislative Assembly — Powers of Speakei Precincts of House of Assembly — Expulsion, xxxiv., 400. See CIONSTiTTjTioNAi. Law. 51. Railways — "Negligence — Free pass — Consideration for transportation — Misdi- rection — Findings of jury — Excessive dam- ages—Art. 503 C. P. ©., XXXV., 68. See Peactice. 52. Construction of contract — Implied covenant — Verdict — Damages, xxxv., 186. See CONTBACT. 53. Life insurance — Wagering policy — Misrepresentation — Questions for jury — Arts. 424, 427 G. P. Q. — Charge to jury, xxxix., 323. See Insurance, Life. 54. Negligence — Builders and contractors — Carelessness of workmen — Liability of employer — Damgerous appliances — Electric wires — Volunteer — New trial. Dumphy v. Martineau, xlii., 224. See Negligence. 55. Negligence — Builders and contractors — Carelessness of workmen — Liability of employer — Dangerous appliances — Electric wires — Volunteer — Master and servant, xlii., 224. See Negligence. 56. Operation of tramway — Employers' liability — Accident in course of employment — "Workmen's Compensation Act" — Right of action — Dependent relations — Construc- tion of statute— (Que.) 9 Edw. TIL, c. 68, ss. S, 15— R. S. Q. 1909, arts. 7321, 1323, 7335 — Incompatible enactment — Repeal — Art. 1056 G. 0. — Practice — Charge to iury — Misdirection — Ewcessive damages — Modi- fication of verdict— Art. 503 C. P. Q., 1., 423. See Negligence. 57. Libel — Business repvftation — Action by incorporated company — Truth^ of alleged facts — Fair comment — Justification — Public interest — Qualified privilege — Charge to jury — Misdirection — Misleading statements ■_ — Practice — Evidence — Special damages. Price V. Chicoutimi, li., 179. See Libel. 58. Negligence — Defective system — Injury to employee — Evidence — Verdict — Practice — Exception to judge's charge — New points on appeal — New trial. Greveling v. Can. Bridge, li., 216.. See Practice and PBOCEDtrKE. 8. Practice. 59. R. S. B. C, 1911, c. 51— Motion for judgment — Re-hearing. Tait v. B. G. Elec, Ry. Co., liv., 76. See Practice and Procedure. 9. Verdict. 60. Libel — Election contest — Withdrawal of candidate — Allegation of improper motives — Trial of action — Verdict for defendant, xliii., 461. See Libel. NON-SUIT. Negligence — Ferryboat wharf — Dangerous way — Precautions for preventing accidents — Evidence — Findings of jury — Non-suit, xxxv., 693. See Negligence. NORTH-AVEST TERRITORIES. Assessment and taxation — Constitutional law — Exemptions from taxation — Lamd sub- sidies of the Canadian Pacific Railway — Ex- tension of boundaries of Manitoba — Con- struction of statutes in respect to the con- stitution of Canada, Manitoba and the North-West Territories — Construction of contract — Grant in prwsenti — Cause of ac- tion — Jurisdiction — Waiver, xxxv., 550. See Assessment and Taxes. NOTARY. 1. Principal and agent — Satisfaction and discharge — Payment in advance — Custody of deeds— -Notarial profession in Quebec — Art. 3665 R S. Q. — Attorney in fact — Implied mandate.]— A notary public, in the Province of Quebec, has not any actual or ostensible authority to receive moneys invested for his clients under instruments executed before him and remaining in his custody as a mem- ber of the notarial profession of that prov- vince (Q. K. 14 K. B. 420, affirmed). Ger- vais V. McCarthy, xxxv., 14. And «ee Principal and Agent. 2. Emdence — Copy of notarial iciU. Mus- grave v. Angle, xliii., 484. See Wux. 3. Action — Public officer — Notice — Prin- cipal and agent — Mandate — Pleading — Prac- fice — New objections on appeal — Case on avveal — Notes of reasons by judges — Find- ings of fact-^Art. 88 C. P. Q., xlvu., 382 See Practice. nx NOTICE, m NOTICE. 1. Promissory note — Deposit receipt — Demand for payment — Action.] — In an ac- tion on an instrument in the following form: "$1,200. Bdmundston, N.B., July 12th, 1899. Keceived from the Reverend N. P. Bablneau the sum of twelve hundred doUars, for which I am responsible, with interest at the rate of seven per cent, per annum, upon production of this receipt and after three months' notice. Fred La- Forest." The court below held (37 N. B. Rep. 156), that the plaintiff could recover as for a promissory note and that a demand for immediate payment made more than three months before the action was a suffi- cient notice. Without calling upon counsel for the respondent, the Supreme Court of Canada dismissed the appeal. Laforest v. Baiiheau, xxxvii., 521. 2. Bills and notes — Instalments of inter- est — Transfer after default to pay interest — "Overdue iills" — Notice — Bolder in good faith— Bills of Exchange Act — Oomimon law ritJe.]— -Where interest is made payable peri- odically during the currency of a promissory note, payable at a certain time after date, the note does not become overdue within the meaning of ss. 56 and 70 of the "Bills of Exchange Act," merely by default in the payment of an instalment of such interest. — The doctrine of constructive notice is not applicable to 'bills and notes transferred for value. — Judgment appealed from reversed, Idington and Maclennan, JJ., dissenting. (Leave to appeal to Privy Council refused, 18tb July, 1908.) Union Investment Co. v. Wells, xxxix., 625. 3. Broker — Purchase on margin — 2fon- payment — Sale without notice — Liability of customer — Damages. Sutherland v. Securi- ties Holding Co., xxxvii., 694. 4. Master and servant — 'Contract of ser- vice — Termination hy notice — Incapacity of servant — Permanent disability — Findings of jury — Weight of evidence, xxxiv., 366. See Master and Servant. 5. Discount of forged note — Notice hy lank — Duty to notify holder — Estoppel, XXXV., 133. See Banks and Banking. 6. Constitutional law — Railway company — Negligence — Agreements for exemption from, liability — Poiver of Parliament to pro- hibit, xxxvi., 186. See Railways. 7. Constitutional law — Imperial Acts in force in Yukon Territory — Title to land — "Torrens System" — Transfer by registered owner — Fraud — Litigious rights — Notice of lis pendens — Irregular registration — In- dorsements vpon certificate of title — Con- »truction of statute — Pleading — Objections taken on appeal — Yukon Territorial Court Rules — Yukon Ordinances, 1902, c. 11 — Rules 113, 115, in — Waiver — Estopjael, xxxvi., 251. See Title to Land. 8. Sale of goods — Suspensive condition — Term of credit — Delivery — Pledge — Shipping bills — Bills of lading — Indorsement of bills — Fraudulent transfer-^Insolvency — Bank- ing — Bailee receipt — Brokers and factors — Principal and agent — Resiliation of contract — Revendication — Damages — Practice — Pleading, xxxvi., 406. See Sale. 9. Railway aid — Municipal by-law -^ Condition precedent — Part performance — Annulment of by-law — Right of action — • Assignment of obligation — Signification upon debtor— Art. 1571 C. C, xxxvi., 686. See Action. 10. Lease — Canal — Water-power — Im- provements on canal — Temporary stoppage of power — Compensation — Total stoppage — Measure of damages — Loss of profits, xxxvii., 259. See Lease. 11. Equitable mortgage — Minxes and min- erals — Lease of rrlining lands — Sheriff's sale — Purchase by judgment creditor of mort- gagee — Registry laws — Priority — Actual no- tice — Lien for Crown dues as rent — C. S. N. B. (1903) c. 30. s. 139, xxxvu., 517. See Mines and Minino. 12. Crown case reserved — ■ Extension of time for notice of appeal — "Criminal Code," s. 1024 — Order after expiration of time for service of notice— Jurisdiction, xxxviii., 207. See Appeal. 13. Promissory note — • Protest in London, England— Notice of dishonour to indorserin Canada — Knowledge of address — First mail leaving for Canada — Notice through agent — Agreement for time — Discharge of surety — Appropriation of payments — Evidence, xxxix., 290. See Bills and Notes. 14. Practice — Ex parte inscription — No- tice, xxxix., 318. See Company. 15. Supply Off electric light — 'Cancellation of contract — Condition for terminating ser- vice — Interest in premises ceasing — "Heirs" ■ — "Assigns," xxxix., 567. See Contract. 16. Breach of contract — Measure of -dam- ages — Notice of special circumstances — Col- lateral enterprises — Loss of primary and secondary profits — Discretionary order as to costs, xxxix, 575. See Contract. 17. Pleading — Purchase for value without notice — Onus of proof — Affirmative and negative evidence — Weight of evidence, xl., 510. See Evidence. 18. Assignment of chose in action — Stat- ute of limitations — Acknowledgment of debt — Interest, Cam. Cas. 239. See Limitation of Actions. 813 XOVATION. su 19. Appeal — Court of Review — Appeal to Privy Council — Appealahle amount — Amendment to statute — Application — 2^0- tice of appeal — l)}ew trial, xli., 639. See Appeal. 20. Railways — Construction and operation — Location plans — Delaying notice to treat — Action to compel expropriation — Com- pensation in respect of lands not acquired — Mandamus — Use of highway — Crossing pub- lic lane — Nuisance, xliv., 65. See Railways. 21. Accident insurance — Condition of pol- icy — Tender before action — Waiver, xliv., 386. See Insurance, Accident. 22. Fire insurance — Conditions of policy — Notice of loss — Imperfect proofs — Non- payment of premium — Waiver — Application of statute — Remedial clause, xliv., 419. See Insubanoe, Plbe. 23. Partnership — ■ Principal and orient — Partnership funds — Third party — Banks and banking — Negotiable instrument — Inquiry, xlv., 127. See Pabtneeship. 24. Sale under powers — Tendei — Equit- able relief — Proceedings taken in good faith, xlv., 3021. See Chattel Moetgage. 25. Vendor and purchaser — Condition of agreement — Sale of land — Payment on ac- count of price — Cancellation — Return of money paid — Rescission — Form of action — Practice, xlv., 338. See Vendor and Pxjechasee. 26. Title to land- — "Torrens System" — Priority of right — Registration — Caveat — Constructiot, of statute — Saskatchewan "Land Titles Act," 6 Edw. VIL c. 24 — Equities between purchasers — Assignment of contract — Conditions — Right enforceable against registered owner, xlv., 551. See Title to Land. 27. Mortgage — Manitoba "Real Property Act" — Power of sale — Special covenant — Statutory supervision — Registered title — ■ Equitable rights — Possession by m,ortgagee — Limitation of action — Construction of statute — R. S. M. 1902, c. US, s. 75 — "Real Property Limitation Act," R. S. M. 1902, c. 100, s. W), xlv., 618. See Mortgage. 28. Yendor and purchaser — Sale of land — Condition — Approval of assignments — Equitable estate or interest — Priority be- tween transferees — Principal and agent — Fraudulent and criminal practices — Notice of previous transfer — Implied knowledge. MacLeod v. Bawyer-Massey Co., xlvi., 622. 29. Municipal corporation — Repair of highways — Statutory duty — "Vnfenced trap" in sidewalk — Misfeasance — Actionable negligence — Knowledge — Personal injuries — • Liability of corporation — Evidence — Find- ings of jury — -"Res ipsa loquitur," xlvi., 457. See MuNioiAL Coepoeation. 30. Banking — Security for advances — Assignment — Chose in action — Moneys to arise out of contract — Unearned funds — Equitable assignment of third party — Evi- dence — Priority of claim — Estoppel — Con- struction of statute — Manitoba "King's Bench Acf — "Bank Act," xlvii., 313. See Banking. 31. Action — Public officer — Notary public — Principal and agent — Mandate — Pleading — Practice — New objections on appeal — Case on appeal — Notes of reasons by judges — Findings of fact — Art. 88 C. P. O... xlvii.. 382'. See Practice. 32. Construction of statute — "Quebec Pub- lic Health Act," R. S. Q. 1909, art. 3913— Inspection of food — Duty of health officers — Quality of food — Condemnation — Seizures- Effect of action by health officers — Control- ling power of courts — Evidence — Injunction — Appeal — Jurisdiction — Question in con- troversy, xlvii., 514. See Statute. 33. Shipment by railway — Carriage of passenger — Special contract — Notice of con- dition — Negligence — Exemption from liabil- ity, xlvii., 622. See Railways. 34. Sale of land — Contract — Defeasance — "Time to be of the essence of the contract" — ■ Deferred payments — Notice after default — Laches — Abandonment — Specific perform- ance, xlix., 14. See Specific Peepoemance. NOVATION. 1. Composition and discharge — Construc- tion of deed — Reservation of collateral secur- ity — Delivering up evidences of debt.} — By deed of composition and discharge the bank agreed to accept composition notes in dis- charge of its claim against the plaintiff at a rate in the dollar, special reserve being made as to the securities it then held for the debt due by the plaintiff. The original debt was to revive in full on default in payment of any of the composition notes. Upon receiv- ing the composition notes the bank surren- dered the notes representing the full amount of its claim. — Held, reversing the judgment appealed from, that the effect of the agree- ment coupled with the reservation made was that the debtor was to be discharged merely from personal liability on payment of the com- position notes but that the securities were to be still held by the bank for the purpose of reimbursing itself, if possible, to the ex- tent of the balance of the original debt. — Held, also, that the surrender of the original notes by the bank did not extinguish the debt they represented and under the circum- stances there was no novation. Banque d'Hochelaga v. Beauchamp, xxxvi., 18. 2. Contract — Sub-contractor — Order from contractor on owner — Evidence.} — T. was contractor for building a house and F. sub-contractor for the plumbing work. When 815 NUISANCE. 816 F.'s work was done he obtained an order from T. on the owner in the following terms : "Please pay F. the sum of $705, and charge to my account on building, Lucknow Street." F. took the order to the owner who agreed to pay if the architect certified that the work had been performed. F. and T. saw the owner and architect together shortly after, and on being informed by the latter that the account was proper and there were funds to pay it, the owner told F. that it would be all right and retained the order when F. went away. F. filed no mechanic's lien, but other sub-contractors did the next day, and T. assigned in insolvency. In an action by F. against the owner: — Beld, Da- vies, J., dissenting, that there was a nova- tion of the debt due from the owner to T. ; that it was not merely an agreement by the owner to answer to F. for T.'s debt nor was the order to be treated as a bill of exchange and accepted as such. Fwrquhar v. Zwioher, xli., 30. 3. Sale of land — -Agreement for re-sale — Rescission.'] — Per Davies and Idington, JJ. — Where the parties to a contract come to a fresh agreement of such a kind that the two cannot stand together, the effect of the sec- ond agreement is to rescind the first. Frith V. Alliance In/vestment Go., xlix., 384. And see Specific Pekfoemance. 4. Partnership — Dissolution — 2few firm 1)V continuing partner — Liaiility of new partnership — Rights of creditors — Trust, Cam. Cas. 823. See Trusts. 5. Contract — Right to assign — Contract- ing firm lecoming incorporated compamy — ' Breach of oontraict — Damages, xlvii., 398. See Contract. NUISANCE. 1. Refusal to accept conditional renuncia- tion — Costs on appeal to court helow — Costs of enguSte — Statutory powers — Negligence — Legal maxim.'] — In an action for $15,000 for damages occasioned by a nuisance to neighbouring property, the plaintifE recov- ered $8,000, assessed en Hoc by the trial court without distinguishing between special damages suffered up to the date of action and damages claimed for permanent deprecia- tion of the property. Before any appeal was instituted, the plaintiff filed a written offer to accept a reduction of $2,590, persisting merely in $410 for special damages to date of action, with costs, and reserving the right to claim aU subsequent damages, including damages for permanent depreciation, but without admitting that the damages suffered up to the time of the action did not exceed the whole amount' actually recovered. This offer was refused by the defendants as it did not affect the costs and contained reserva- tions, and an appeal was taken by them, on which the Court of King's Bench, in allow- ing the appeal, reduced the amount of the judgment to $410, reserved to plaintiff the right of action for subsequent special dam- ages and damages for permanent deprecia- tion and gave full costs against the appel- lants, on the ground that they should liave accepted the renunciation filed. — Held, Da- vies, J., dissenting, that the Court of King's Bench erred in holding that the defendants had no right to reject the conditional re- nunciation and in giving costs, and the re- servation as to further action should be dis- mdssed as to the $2,590 with costs, and the resei'vation as to further action for deprecia- tion disallowed, but that the judgment for $410 with costs, as in an action of that class, with the reservation as to temporary dam- ages accruing since the action, should be af- firmed. As the costs at the enqu4te were considerably increased on account of the large amount of damages claimed, it was deemed advisable, under the circumstances, to order that each party should pay their own costs thus incurred. — Held, also, that, although the nuisance complained of was caused by the defendants acting under rights secured to them by special statute, yet, as there was negligence found against them upon evidence suflicient to support that find- ing, the maxim sic utere tuo ut alienum non Imdas applied, and the powers granted by their special charter did not excuse them from liability. The Canadian Pacific Rail- way Co. V. Roy ([1902] A. C. 220) dis- tinguished. Montreal 'Water and Power Co. V. Davie, xxxv., 255. 2. Operation of machinery — Continuing nuisance — Negligence — Droits du voisinage — Vibration, smoke, dust, etc. — Series of torts — Statutory franchise — Permanent injury- — Abatement of nuisance — Prospective dam- ages — Method of assessing damages — Limi- tations of actions — Prescription of actions in tort— Arts. 377, 379, 3S0 and 2261 C. C] — Where injuries caused by the operation of machinery have resulted from the unskilful or negligent exercise of powers conferred by public authority and the nuisance thereby created gives rise to a continuous series of torts, the action accruing in consequence falls within the provisions of art. 2261 of the Cdvil Code of Lower Canada, and is pre- scribed by the lapse of two years from the date of the occurrence of each successive tort. 'Wordsworth v. Harley (1 B. & Ad. 391) ; Lord Oakley v. Kensington Canal Co. (5 B. & Ad. 138) ; and 'Whitehouse v. Fel- lowes (10 C. B. N. S. 765) referred to.— In the present case, the permanent character of the damages so caused could not be assumed from the manner in which the works had been constructed and, as the nuisance might, at any time, be abated by the improvement of the system of operation or the discontinu- ance of the negligent acts complained of, pro- spective damages ought not to be allowed, nor could the assessment, in a lump sum, of damages, past, present and future, in order to prevent successive litigation, be justified upon grounds of equity or public interest. Judgment appealed from (Q. R. 13 K. B. 531) reversed, the Chief Justice and Girouard, J., dissenting. Fritz v. So'b- son (14 Ch. D. 342) referred to. Gareau v. The Montreal Street Railway Co. (31 Can. S. C. R. 463) distinguished. Montreal Street Railway Go. v. Boudreau, xxxvi., 329. 3. Rights appurtenant to dominant tene- ment — Construction of ice-house — Change in natural conditions — Flooding of servient 817 NUISANCE. 818 tenement — Aggravation of servitude — In- junction — ■ Damages — Abatement of nui- sance— Aits. 406, 501, 549 C. 0.]— The con- struction upon a dominant tenement of an ice-house in a manner to cause the water from melting ice stored therein to flow down upon adjoining lands of lower level and in- juriously affect the same is an aggravation of the natural servitude in respect of which the owner of the servient tenement may re- cover damages for the injury sustained and have a decree for the abatement of the nui- sance. — ' Judgment appealed from affirmed, Girouard, J., dissenting. Audette v. O'Cain, xxxix., 103. 4. Irrigation works — Obstruction of high- ways — Duty to build and maintain bridges — Construction of statute — 81 V. c. So, ss. 11, 16, 37,] — By "The North-West Irriga- tion Act, 189(8" (61 Vict. c. 35), it is provided (s. 116) that irrigation companies should submit their scheme of works to the Commissioner of Public Works of the North- west Territories and obtain from Mm per- mission to construct and operate the works across road allowances and surveyed public highways which might be affected by them ; that (s. 16) his approval and permission for construction across the road allowances and highways should be obtained prior to the authorization of the works by the Minister of the Interior of the Dominion, and (s. 37), that during the construction and operation of the works, they should "keep open for safe and convenient travel all public high- ways theretofore publicly travelled as such, when they are crossed by such works" and construct and maintain bridges over the works. The commissioner was the local officer in control of all matters affecting changes in or obstruction to road allowances and public highways vested in the territorial government, "including the crossing of such allowances or public highways by irrigation ditches, canals or other works." The com- missioner granted permission to the appel- lants to construct and maintain their works across the road allowances and public high- ways shewn in their application "subject to the provisions of section 37 of the said North-West Irrigation Act," without impos- ing other conditions. — Held, reversing the judgment appealed from (3 Alta. L. R. 70), the Chief Justice and Idington, J., dissent- ing, that the absolute statutory duty in re- spect of the construction and maintenance of bridges imposed by section 37 of "The North-West Irrigation Act, 1898," relates solely to highways which were publicly tra- velled as such prior to the construction of the irrigation works, and that, as no fur- ther duty was imposed by the commissioner as a condition of the permission for the con- struction and maintenance of their works, the company was not obliged to erect bridges across their works at the points where they were intersected by road sSlowances or pub- lic highways which became publicly tra- velled as such after the construction of the works. — Per Davies and Duff, JJ. — In con- struing modern statutes conferring compul- sory powers, including powers to interrupt the exercise of public rights, questions as to what conditions, obligations or liabilities are attached to, or arise out of the exercise of such powers, are primarily questions of the meaning of the language used or of the proper inferences respecting the legislative intention touching such condi- tions, obligations and liabilities to be drawn from a consideration of the subject-matter, the nature of the provisions as a whole, and the character of the objects of the legisla- tion as disclosed thereby. Alberta Railway and Irrigation Co. v. The King, xliv., 505. (Leave to appeal to the Privy Council was granted, 20th July, 1911.) 5. Municipal corporation — Raising level of streets — Injury to owners — Liability for damages. Cam. Oas. 537. See MuNiciPAi. Corporation. 6. Municipal corporation — Drainage — Con- struction of sewers — Injunction — Damages — Right of action — Practice, Cout. Cas. 162. See AppEAi,. 7. Railways — Construction and operation — Location plans — Delaying notice to grant — Action to compel expropriation — Com- pensation in respect of lands not acquired — Mandamus — Use of highway — Crossing pub- lic lane — Nuisance, xliv., 65. See Railwats. 8. Industrial improvements on streams — Raising height of dam — Nuisance — Dam- ages — Expertise and arbitration — Rights of action — Measure of damages — Practice — Fu- ture damages — Prescription — R. 8. Q. 1888, arts. 5535, 5536, xliv., 305. See RrvEES and Stbeams. 9. Irrigation works — Obstruction of high- ways — Duty to build and maintain bridges — Construction of statute, xliv., 495. See Statute. 10. Municipal corporation — Building by- law — Da/ngerous constructions — Abatement of nuisance — Condition precedent — Notice — ■ Order to repair — Demolition of structure — trespass — Forcible entry — Tort — Dam- ages — Construction of statute — • Montreal city charter, xUv., 579. See JIUNICIPAL COEPOBATION. 11. Municipal corporation — Highways — Nuisamce — Repair of sidewalks — Negli- gence — Statutory duty — Nonfeasance — Personal injury — Civil liability — Right of action — • Construction of statute — "Vancou- ver City Charter, xlv., 194. See Municipal Coepoeation. 12. Negligence — Obstruction of highway — Street railway — Trolley poles between tracks — Statutory authority — Protection by light. Hamilton St. R. R. v. Weir, li., 506. See Railways. 13. Highu-ay — Use of sidewalk — Muni- cipal responHbility. Jamieson v. Edmonton, liv., 443. See Municipal Corporation. 819 OEDER 820 NULLITY. 1. Construction of deed — AmJ)iguity—Dit- charge of debtor — •Contract — Illegal considr eration — Right of action, xxxvii., 613. See Deed. 2. Municipal corporation — Sale of corpora ate property — Committee of council — Au- thority to sell — Ratification, xxxix., 586. See Municipal Corporation. 3. Action against minor — Exception of minority — Practice — Irregularity in proce- dure — Waiver after majority — Ratification — Prejudice — Review iy appellate court, xlvii., 103. See Practice. "NULLUM TEMPUS ACT." See Prescription. T.weedie v. The King, Hi., 197. OBLIGATION. See Contract. OFFICIAL ASSIGNEE. Construction of statute — Alberta "Assign- ments Act" — Assignmerit for benefit of creditors — Occupation of leased ■ premises — Liability of official assignee. Northwest Theatre Co. v. MacKinnon, lii., 588 See Assignment. OPPOSITION. 1. Sheriff's sale of lands — Opposition afin de charge — Discretionary order — Default in furnisihing security — Res judicaita — Estoppel by record — Frivolous and vexatious proceed- ings — Quashing appeal — Jurisdiction of Su- preme Court of Canada — R. 8. G. c. 135, ss. 21, 59,— Arts. 651, 126 C. P. Q.]— In pro- ceedings for the sale of lands under execu- tion, the appellants filed an opposition to se- cure a charge thereon and, under the provi- sions of article 726 of the Code of Civil Pro- cedure, a judge of the Superior Court or- dered that the opposauts should, within a time limited, furnish security that the lands, if sold suhject to the charge, should realize sufficient to satisfy the claim of the execution creditor. On failure to give security as re- quired the opposition was dismissed, and on appeal to the Supreme Court of Canada, the judgment dismissing the opposition was affirmed (35 Can. S. C. R. 1). Subsequently the proceedings in execution were continued iind, on the eve of the date advertised for the sale by the sheriff, the oi)posants filed an- other opposition to secure the same charge, offered to furnish the necessary security, and obtained an order, staying the sale. The judgment appealed from maintained a sub- sequent order made under art. 651 C. P. Q. which revoked the order staying the sale and dismissed the opposition.- — Held, that the judgment dismissing the opposition on de- fault to furnish the required security was chose jug4e against the appellants arid de- prived them of any right to give security or take further proceedings to secure their alleged charge upon the lands under seizure. Per Taschereau, C.J. — In a case like the present an appeal to the Supreme Court of Canada would be quashed, on motion by the respondent, as being taken in bad faith. — Per Girouard, J. — As the order by the judge of first instance was made in the exercise of judicial discretion the Supreme Court of Canada, under section twenty-seven of the Act, was deprived of jurisdiction to enter- tain the appeal. Fontaine v. Payette, xxxvi., 613. 2. Vacating judgment — Appeal — Juris- diction — Matter in controversy — Tierce op- position—Arts. 1185-1188 C. P. Q.—R. S. C. c. 135, s. 29.] — 'A creditor of an insolvent with a claim for $600 filed a tierce opposi- tion to vacate a judgment declaring the re- spondent to be the owner of the business of a restaurant and the liquor license acces- sory thereto, alleged to be worth over $5,000. The opposition was dismissed on the ground that, under the circumstances of the case, the company had no locus standi to contest the judgment. On motion to quash an ap- peal to the Supreme Court of Canada : — Held, that as there was no pecuniary amount in controversy an appeal would not lie. Cot6 v. The James Richardson, Go. (38 Can. S. C. R. 41), distinguished. Canadian Breweries Co. V. Oariipy, xxxviii., 236. 3. Opposition afin de charge — Order for seourity — Interlocutory judgment — Res judicata — Subsequent final order — Revision of merits or appeal — Practice, xxxv., 1. See Appeal ; Costs. OPTION. 1. Principal and agent — Broker selling on Grain Exchange — Contract in broker's name — Liability of principal — Board rules — Indemnity, xli., 61. See Broker. 2. Broker — Dealings ''on Change" — Specu- lative options — Principal and agent — Liabil- ity for contracts by agent in his own nam-e — ■ Privity of contract — Purchase and sales on "margin" — Settlements through clearing house — Wagering contract — Malum prohi- bitum — Criminal Code, s. 231, xlix., 595. See Broker. ORDER. Sheriff's sale of lands — Opposition afin de charge— Discretionary order — Default in fur- nishing security — Res judicata — Estoppel by record — Frivolous and vexatious proceedings -Quashing appeal — Jurisdiction of Supreme Court of Canada — R. 8. C. c. 135, ss. 27, 59 —Arts. 651, 726 C P. Q., xxxvi., 613. See Opposition. 821 PARTIES. 822 ORDER IN COUNCIL. Conatitutional law — Int^r-provmeial and international ferries — Estailishment or oreation of jerries — License — Franchise — Exclusive rights — Powers of Parliament — • B. S. C. c. 97—51 Vict. c. 23 (D.)—Acts ly Governor in Council.'^ — Chapter 97 E. S. C. "An Act respecting Ferries" as amended by 51 Vict. c. 23, is vntra vires of the Parlia- ment of Canada. — ^The Parliament of Can- ada has authority to, or to authorize the Governor-General in Council, to establish or create ferries between a province and any British or foreign country or between two provinces. — The Governor-General in Coun- cil, if authorized by Parliament, may confer, by license or otherwise, an exclusive right to any such ferry. In re International and Inter-provincial Ferries, xxxvi., 206. ORIENTALS. Constitutional law — Criminal law — Legislation respecting crientals — Chinese places of business — Employment of white females — Statute — Z Geo. V. c. 17 (Sask.) —"B. N. A. Act, 1867," ss. 91, 92— Local and private matters — Property and civil rights — Naturalized British subject — Convic- tion under provincial statute, xlix., 440. See Constitutional Law. ,that though the daughter was twenty-three years old she was still subject to the do- minion and influence of her father and the contract made by her without independent advice was not binding. Cox v. Adams, XXXV., 393. And see Mabeied Woman. 2. Guardianship — Family arrangement — PuMic policy.'}- — Where a widow, whose hus- band left no estate, agrees to give up her natural right of guardianship over her daughter and transfer the same to the lat- ter's grandfather who, on his part, agrees to educate her, provide for her afterwards and allow as fuU intercourse as possible be- tween her and her mother, the fact that the arrangement includes an allowance to the mother for her maintenance does not neces- sarily make it void as against public policy. Idington and Duff, JJ., dissenting. Chishohn V. Chiaholm, xl., 115. OWNERSHIP. PARLIAMENT. 1. Constitutional law — Legislative Assem- tly — Powers of Speaker — Precincts of Souse of Assembly — Expulsion, xxxiv., 400. See Constitutional Law. 2. Controverted election — Abatement of appeal — Dissolution of Parliament — Return of deposit — Practice, Cout. Cas. 314. See Election Law. See Constitutional Law. 1. Sale of goods — Owner not in possession — Authority to sell — Secret agreement — Estoppel, xxxiv., 429. See Sale. 2. Construction of will — Usufruct — Sub- stitution — Partition between institutes — Validating legislation — 60 Vict. c. 95 (Q.) — Construction of statute — Restraint of aliena- tion — Interest of substitutes — Devise of pro- perty held by institute under partition — De- volution of corpus of estate es nature — Ac- cretion — Res judicata — Arts. 868, 9^8 C. C. xxxviii., 1. See Will ; And see Title to Land. PARENT AND CHILD. 1. Contract — Security for debt — Promis- sory note — HuslTand and wife.'\ — C, a man without means, and W., a rich money lender, were engaged together in stock speculations, W. advancing money to C. at a high rate of interest in the course of such business. C being eventually heavily in the other's debt it was agreed between them that if he could procure the signatures of his wife and daughter, each of whom had property of her own, as security, W. would give him a fur- ther advance of $1,000. Though unwilling at first title wife and daughter finally agreed to sign notes in favour of C. for sums aggre- gating over $7,000, which were delivered to W. Neither of the makers had independent advice. — Held, reversing the judgment ap- pealed from, Taschereau, C.J., dissenting. PARLIAMENTARY ELECTIONS. See Election Law. PARTIES. 1. New trial — Contradictory evidence — Wilful trespass — Rule in assessing damages ■ — Practice — Adding party — Reversal on ap- peal, xxxvi., 152. See f EACTICE. 2. Liquidation of insolvent corporation — Distribution and collocation — Practice — Ex parte inscription — Notice to interested parties, xxxix., 318. See Company. 3. Tramway — 'Contract with municipality — Limited tickets — Specific performance — Injunction — Right of action — Parties, xxxix., 673. See Pbactice. 4. Breach of trust — Interest on bonds — Unlawful acts by Crown officers — • Ultra vires — Withholding interest from Crown — Necessity of impleading other interested par- ties — Practice, Cout. Cas. 316. See Peactioe. 5. Cross-appeal — Practice, xliv., 543. See Practice. 823 PAETJSTBESHIP. 8^4 6. Carrier — Bill of lading — Loss of goods — Action — Dormant partner. Yipond v. Fur- ness, Withy & Co., liv., 521. See Shipping. PARTITION. 1. Construction of will — Usufruct — Buh- stitution — Partition hetween institutes — Validating legislation — 60 Vict. c. 95 (Q.) — Construction of statute — Restraint of alienation — Interest of sui^titutes — -Devise of property held by institute under partition — Devolution of corpus of estate en nature — Accretion — Res judicata — Arts. 868, 948 C. C] — The efEect of the statute 60 Viet, c. 95 (Que.), respecting the will of the late Amable Prfivost, read in conjunction with the provisions of the will and codicils therein referred to, is to declare the deed of parti- tion between the beneficiaries thereunder final and definitive and not merely provi- sional ; the judgment of the Court of Queen's Bench, on the appeal side, taken under that statute, has no other effect. Neither the stat- ute nor the judgment referred to sanctions the view that the said will and codicils con- stitute more than one substitution created thereunder in favour of all the joint legatees and, consequently, accretion takes place among them within the meaning of article 868 of the Civil Code, in the event of any legacy lapsing, under the terms of the will, upon the death of an institute without issue prior to the opening of the substitution. In such case the share of the institute dying without issue devolves to the other joint legatees, as well in usufruct as in absolute ownership, and, consequently, none of the institutes or substitutes have the right of disposing of any portion of the testator's estate, by will or otherwise, prior to the date of the opening of the substitution. — Judg- ment appealed from (Q. R. 28 S. 0. 257) reversed. DeHertel v. Ooddard (66 L. J. P. C. 90) distinguished. (Appeal to Privy Council allowed, [1908] A. C. 541). Privost V. Lamarche, xxxviii., 1. 2. Agreement for sale of lands — Construc- tion of contract — Right of action — Adminis- tration ty co-owners — Trust — Interim ac- count — Partial discharge of trustees.'\ — -A. and S., being holders of the entire capital stock of the C. and W. Ry. Co., agreed that they would cause a moiety of the company's lands to be vested in H. by a valid instru- ment to be executed by the company at the request of H. and in such form as he might require. During some years the lands were administered by A. and S., but H. never re- quested nor received any conveyance of Ms moiety, and the title to the lands, in so far as they had not been disposed of, remained in the company. In an action by the plain- tiffs against 'H. for partition of the lands and to have an order for an interim account by and partial discharge of A. and S. as trus- tees : — Held, that as, at the time of action, the title to the lands was still vested in the railway company which was not a party to the agreement, the order for partition could not be granted, and that, independently of partition or other final determination of their trust, the plaintiffs were not entitled to the relief of an interim accounting and partial discharge as trustees. — Judgment appealed from (14 B. C. Rep. 157) ) affirmed. Angus V. Beime, xlii, 416. 3. Conveyance of land — Description of property — Partition — Petitiory action — "Quebec Act, 1774" — Introduction of Eng- lish criminal law — Champerty — Maintenance — Affinity and consanguinity — Parties inter- ested in litigation — Litigious rights — Pacte de guotd litis — Illegal consideration — Speci- fic performance — Retrait sucoessoral — Pleading, xxxiv., 24. See Champerty; Title to LiANd. 4, Construction of mil — Substitution^— 'Brust — Death of grev4— Accretion — Appor- tionment in aliquot shares — Distribution of estate— Partial intestacy — Devolution, xlvii., 42. See Wix-i.. PABTNEBSHIP. 1. Syndicate to promote joint stock com- pany — Trust agreement — • Construction of contract — • Administration by majority of partners — Lapse of time limit— Specific per- formance.'] — ^A syndicate consisting of seven members agreed to form a joint stock com- pany for the development, etc., of properties owned by two of their number, the defen- dants, under patent rights belonging to two other members ; ithe three remaining mem- bers, of whom plaintiff was one, furnishing capital, and all members agreeing to assist in the promotion of the proposed company. In the meantime the lands were acquired by the defendants and patent rights were assigned to them, in trust for the syndicate, and the lands and patent rights were to be trans- ferred to the syndicate or to the company without any consideration save the allot- ment of shares proportionately to the inter- est of the parties. The stock in the pro- posed company was to be allotted, having in view the proprietary rights and moneys con- tributed by the syndicate members, in pro- portion as follows, 37% per cent, to the de- fendants who held the property, 32% per cent, to the owners of the patent rights, the other three members to receive each 10 per cent, of the total stock. A time limit was fixed within which the company was to be formed and, in default of its incorporation within that time, the lands were to remain the property of the defendants, the transfer\ of the patent rights were to become void and all parties were to be in the same position as if the agreement had never been made. The tenth clause of the agreement provided that, in case of difference of opinion, three-fourths in value should control. Owing to difference in opinion, the proposed company was not formed but, within the time limited, the plaintiff, and the other two members, hold- ing together 30 per cent, interest in the syn- dicate, caused a company to be incorporated for the development and exploitation of the enterprise and demanded that the ■property and rights should be transferred to it under the agreement. This being refused the plain- tiff brought action against the trustees for specific performance of the agreement to 825 PAETNEBSHIP. 826 convey the lands and transfer the patent rights to the company, so incorporated, or for damages. — Held, that the tenth clause of the agreement controlled the administra- tion of the affairs of the syndicate and that, as three-fourths in value of the mem- bers had not joined in the formation of a company, as proposed, within the time lim- ited, the lands remained the property of the defendants, the patent rights had reverted to their original owners and the plaintiff could not enforce specific performance. Hop- per V. Soetor, xxxv., 645. 2. Bills and notes — Material alterations — Forgery — PartnersMp — Mamdate — As- sent of parties — Liability of indorser — Con- struction of statute — "Bills of Exchange Act."] — R. induced H. to become a party to and indorser of a demand note for the pur- pose of raising funds and agreed to give warehouse receipts as security to the bank on discounting the note. It was arranged that the goods covered by the warehouse re- ceipts were to be held and sold on joint ac- count, each sharing equally in the profits or losses on the transaction. Subsequently R. altered the note, without the knowledge or consent of H., by adding thereto the words "aveo intirSt & sept par cent par an," and falsely represented to the bank that H. held the warehouse receipts as collateral security for his indorsement. A couple of months later H., for the first time, became aware that the goods had never been purchased or placed in warehouse, that no warehouse re- ceipt had been assigned to the bank and did not, until some months later, know that the alteration had been made in the note. There was some evidence that H. had asked for time to make a settlement of the amount due to the bank upon the note after he had become aware of the fraud and the alteration so made. — Held, by Idington, Maclennan and Duff, JJ., that the instrument was a for- gery and could not be ratified by an ex post facto assent. The Merchants Bank v. Iai- cas (18 Can. S. C. R. 704; Cam. Cas. 275), and Brook v Hook (L,. R. 6 Ex. 89), fol- lowed. — Per Idington, J. — The circumstan- ces of the ease did not shew that there had been any assent to the alteration within the meaning of section 145 of the "Bills of Ex- change Act." — Per Maclennan, J. — The as- sent required to bring an altered bill within the exception provided by section 145 of the "Bills of Exchange Act," R. S. C. (1906), c. 119, must be given by the party sought to be bound at the time of or before the making of the alteration. — Held, also, the Chief Jus- tice and Davies, J., contra, that, in the special circumstances of the case, there was no partnership relation between the parties to the note for the purposes of the transac- tion in question and there could be no im- plied authorization for the making of the alteration in the note. — Per Pitzpatrick, C.J. — The transaction in question was a joint venture or particular partnership for the enterprise in contemplation of the parties and, consequently, R. had a mandate to make whatever agreement was necessary with the bank to obtain the funds and to provide for the payment of interest on the advances required to carry out the business. — Judgment appealed from (Q.R. 16 K.B. 191) reversed, the Chief Justice and Davies, J., dissenting. Hihert v. La Banque Ra- tionale, xl., 458. 3. Separate business — Same firm name — Partners different — Member making note in firm name — Liability to bond, fide holder.] — Action on a promissory note for $1,26().40 The defendant, J. E. Dunham, carried on business in the City of Montreal as a dealer and importer in dye stuffs and chemicals un- der the name of J. E. Dunham & Co In this company the defendant Park had no in- terest, and was in no way connected with it While carrying on this business at Montreal the defendant Dunham entered into partner- ship with Park, on the 1st of May, 1886, for the purpose of carrying on the same busi- ness at Toronto under the name of J. E Dunham & Co. On the 12th of August, while both these firms were thus carrying on business separately at Montreal and Toronto respectively, Dunham made the promissory note sued on. This was afterwards indorsed over to one Gardner, and by Gardner to the plaintiff. Upon the evidence it was held, by Rose, J., before whom the action was tried, that the note was given by Dunham with reference to the business carried on at Mon- treal, and came within the principle of Stan- dard Bank v. Dunham (14 O. R. 67), which was an action brought on another note, given under the same circumstances and at the same time as the one sued on in the present case. On appeal to the Court of Appeal for Ontario this judgment was affirmed, and, on further appeal to the Supreme Court of Can- ada. — Held, that the appeal should be dis- missed with costs. — Held, per Gwynne, J., that a person who was a member of two partnership firms having the same partner- ship name, but not composed of all the same members, giving a note in the partnership name which reaches a bond fide holder for value, it is a question of fact to be deter- mined on the evidence what firm he intended to sign for, and the members of such firm only are liable on the note. Banks v. Park, Cam. Cas. 200. 4. Sale of land — Principal and agent — Secret profit by broker — Participation in breach of trust — Implied partnership — Lia- bility to account — Purchaser in good faith — Disclosure of suspicious circumstances.] — C, being aware that B. was an agent for the sale of certain lands, entered into an agree- ment with him for their purchase on joint account in his own name, upon the under- standing that they should each be owners of one-half of the lands and share profits equally upon a re-sale. B. transferred one-half of his interest to M., who gave valuable con- sideration therefor with knowledge at the time of B.'s agency for the sale of the lands. Shortly after the conveyance of the lands by the owner. P., to C, they were re-sold to another person at a large profit, and P., hav- ing discovered the nature of the transactions, brought action against B., C and M. to recover the amount of the profits which they had realized upon the re-sale of the lands. — Held, affirming the judgment appealed from (.3 Sask. L. R. 417), Fitzpatrick, C.J., and Anglin, J., dissenting, that the agreement between B. and C. was a partnership trans- action ; that C. thereby became subject to the fiduciary relationship existing between B. S27 PAETREESHIP. 83S' and P. in respect of the sale of the property ; that he was disqualified as a purchaser of the lands which were the subject-matter of B.'s agency, and that he was equally re- sponsible with B. to account to P. for the profits realized from the re-sale of the pro- perty. — In regard to M. it was held, also affirming the judgment appealed from, Iding- ton, J., dissenting, that as the evidence did not shew that he was other than a ftojid fide purchaser for valuable consideration he was under no obligation to account for profits realized upon the sale of the inteEest in the lands acquired 'by him under the transfer from B. Coy V. Pommerenke, xliv., 543. And see Brokee. 5. Principal and agent-^Partnership funds — 'Third party — • Banks and hanking — Ne- gotiable instrument — Notice — Inquiry. '\ — R., a member of the firm of R. M. & 0., en- gaged on a contract for railway construc- tion in Quebec, shortly before its completion went to Ontario, leaving his partners to fin- ish the work, collect any balance due, pay the liabilities and divide the balance among them. M. and C. finished the work and re- ceived $56,000 and over, went to Toronto and formed a new partnership of which R. was not a member. Having undertaken an- other contract in North Ontario, they ar- ranged with the head office of the Imperial Bank to open an account with its branch at New Liskeard and the cheque payable to R. M. & C was cashed at the branch in To- ronto, and by instructions to the New Lis- keard branch was placed to the credit of the new firm then and the whole sum was event- ually drawn out by the latter firm. R., later, brought an action against M. and C. for winding up the affairs of their co-partner- ship and, pending that action took another against M. and C. and the bank claiming that the latter should pay the amount of the cheque with interest into court subject to further order. — Held, per Fitzpatrick, C.J., and Davies, J., afiirming the judgment of the Court of Appeal (19 Out. L. R. 584), Id- ington and Anglin, JJ., dissenting, that M. and C. had acted within their authority from R. by obtaining cash for the cheque; that there was nothing to ^hew that they had misapplied the proceeds or intended to do so by their dealing with the cheque ; that in any case there was no notice to the bank of any intention to misapply the funds and nothing to put them on Inquiry ; and that the action against the bank must fall. — Per DufE, J. — The evidence establishes that M. and 0. had authority to convert the cheque into an in- strument transferable by delivery only and that it was acquired by the bank in good faith in the ordinary course of business. The bank, therefore, obtained a good title to the cheque and its proceeds as against the ap- pellant. Ross V. Chandler, xlv., 127. 6. Master and servant — Profit-sharing — Evidence — Statutes — R. B. B. 0., 1911, o. 15S, s. S; c. lis, s. 4 — Words and phrases — "Partnership."] — ^The "Master and Ser- vant Act," R. S. B. C, 1911, c. 153, by s. 3, respecting profit-sharing by servants, de- clares that no agreement of that nature shall create any relationship in the nature of partnership. Section 4 of the "Partnership Act," R. S. B. C, 1911, c. 175, proTides rules for determining partnership and, by s.-ss. 2 and 3, declares that the sharing of gross profits does not, of itself, create a partnership, that the receipt of a share of the profits of a business is prima facie evidence of a partnership, that the receipt of such share or of a payment varying with the profits does not, of Itself, make the person receiving the same a partner, and that a contract to remunerate a ser- vant by a share of the profits does not, of itself, make him a partner. The plaintiff, an employee of the defendant, by the terms of his engagement was to receive as remun- eration for his services a one-half share of the profits of defendant's business and con- versations took place regarding an arrange- ment whereby plaintiff might have a "share in the business," but no definite agreement was made. Plaintiff, claiming to have be- come a partner, wrote a letter to defendant asserting that he had an undivided inter- est in the business and asking him to exe- cute articles of partnership. Defendant re- plied to thia letter in an evasive and temporizing manner and the business con- tinued to be conducted without any change. Later on, the defendant served upon the plaintiff a notice of dissolution of partner- ship and, in the notice as well as in the correspondence, made use of the word "part- nership" in referring to the relations be- tween them. — Held, reversing the judgment appealed from (18 B. C. Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that he had been admitted as a partner in the business in the strict legal sense, and that the indefinite use of the term "partnership" in the cor- respondence and notice did not, in the cir- cumstances, amount to evidence of an agree- ment that there should be a partnership. Donkin v. Disher, xlix., 60. 7. Lease — Scope of authority — Resiliafion — Form of action — Appropriate relief — Pleading — Praotice.1 — A partnership, con- sisting of H. and W., which was to expire by effluxion of time on 31st December, 1912, held a lease of warehouse property in Mont- real, of which the term expired on the 30th April, 1913. During the absence of H., in September, 1912, and without authority from him to do so, W. obtained a renewal of the lease for three years, from the 1st of May then following, which was repudiated by H. on his return to Montreal. In action by H. to have the renewal lease declared null and void : — Held (the Chief Justice and Brodeur, J., dissenting) , that the plaintiff had a suflS- cient interest to enable him to maintain the action and obtain a declaration that the lease was not binding upon the partnership or upon himself as a member of the firm. — Per Fitzpatrick, C.J., dissenting. — In the province of Quebec distinct and consistent pleading is essential and, as the plaintiff did not bring his action to obtain relief from his obligation under the renewal lease, but merely to have that lease declared nuU and void, be could not, in the action as brought, have a declaration that the lease was not binding upon him. Forbes v. Atkinson (Pyke K. B. 40) referred to. — Per Brodeur, J., dissenting. — As the partnership was benefited by the renewal of the lease it should be deda^ed valid and binding on all 829 PAETNERSHIP. 830 the partners. — Judgment appealed against (Q. S. 23 K. B. 1), reversed. Eyde v. Webster, 1., 295. 8. Shares in business — Associating third- person — Ooodriviil — Accounting between partners — Art. 1853 G. C] — For a number of years the defendants had carried on, in partnership, the business of accountants and, as their operations expanded, they engaged assistants, who were called "junior part- ners," remunerating them by salaries and percentage rates on yearly profits and, in some years, with bonus additions. With the approval of the "junior partners," the de- fendants associated P. in a one-fourth share of the business, and the firm name was changed for the new organization which was carried on according to terms mentioned in an agreement which recited that it had been agreed between the defendants "that those at present constituting the firm" and "those for the time being constituting the iirm of W. P. B. & Co." should arrange a partnership, etc. Upon making this arrange- ment the defendants received £20,000 from P. and, some time afterwards, in similar circumstances, £1,000 was received by them from G. The defendants retained these sums, as their own, and did not inform the "junior partners" that they had been paid. In an action by a "junior partner" for an account and a proportionate share of this £21,000: — Held, affirm- ing the judgment appealed from (Q. R. 24 K. B. 321), that the moneys so received by the defendants were not paid for a share in the business to be taken wholly from their individual interests therein, but for a share in the assets and goodwill of the business itself ; consequently, the plaintiff had an interest in the moneys so paid and was entitled to an account and a proportion- ate share thereof. Marwick v. Kerr, liii., 1. 9. Dissolution — Death of pUrtner — Sur- vivor's right to purchase share — Good-will — Annual balance sheet.] — If the intention that a surviving partner should have a right to take over the interest of a deceased part- ner clearly appears fi'om the terms of the partnership agreement, though it is not formally expressed, that right exists. Bro- deur, J., dissented. Idington, J., dissented on the ground that such intention was not clearly manifested. — The partnership arti- cles provided that at the end of each part- nership year an account should be taken of the stock, liabilities and assets of the business, and a balance sheet struck for that year ; that in case one partner died the co-partnership should continue to the end of the current financial year or, at the option of the survivor, for not more than twelve months from such death ; that for twelve months from the death of bis part- ner the survivor should not be required to pay over any part of the latter's capital in the business ; and that any dispute be- tween the survivor and representatives of the deceased as to the amount of debits against or credits to either in the balance sheet or the valuation of the assets should be referred to aribitration. — Held, Duff, J., dissenting, that the value of the interest of the deceased partner was not to be deter- mined by the account taken and balance sheet struck at the end of the financial year following his death, but the assets should be valued in the ordinary way. — Held, also. Davies and Duff, JJ., dissenting, that thu goodwill of the business was to be included in said assets, though it had never formed a part of them in the annual balance sheets struck since the co-partnership began. — Judgment of the Appellate Division (34 Ont. L. E. 278) reversed in part. Wood v. Gauld, liii., 51. 10. Company law — Payment for shares — Transfer of business — Debt due partnership — Set-off — Counterclaim — Accord and sat- isfaction — Liability on subscription for shares — B. S. B. G. c. M, ss. 50 and 51, xxxiv., 160. See Company. 11. Appointment of court official to act as receiver — Management of business — Super- vision and control — Laches, xxxvi., 647. See Receiveb. 12. Partnership — Formation of limited company — Act of directors — Unauthorized eoBpenditure — Liability of innocent directors, xxxvii., 32. See Company. 13. Account stated — Admission of liability — Promise to pay — Oollateral agreement — Parol evidence, xxxvii., 315. See Evidence. 14. Account — Statute of Limitations ■ — Agents or partners — Reference — Practice, xxxviii., 216. See Account. 15. Supply of electric light — Cancellation of contract — Condition for terminating ser- vice — Interest in premises ceasing — "Heirs" — "Assigns," xxxix., 567. See CoNTEAor. 16. Sale of goods — Set-off — Debtor and creditor — Evidence — Books of account — Practice — New trial — Reducing verdict on appeal. Cam. Cas. 282. See New Trial. 17. Dissolution — New firm by continuing partner — Liability of new partnership — Rights of creditors — Trust — Novation, Cam. Cas. 328. See Trusts. 18. Contract — Principal and agent — Mis- representations — Pledging credit of ovmers of ship, Cout. Cas. 131. See Ships and Shipping. 19. Suit against firm — Surviving partner — Practice — Amending minutes of judgment, Cout. Cas. 384. See Judgment. 20. Division of profits — Collateral busi- ness affairs — Trust — Account — Findings of fact — Practice and procedure. Home v. Gordon, xlii., 240. 21. Lease — Covenant not to assign — As- signment to co-partner — Right to renewal — Notice. Loveless v. Fitisgerald, xlii., 254. See Landlord and Tenant. 831 PATENT OP IJSrVENTION. 832 PARTY WALL. Servittide — Obligation of mitoyehnet4 — Exercise of party-rights — Oontraution to- wards party-wall — Arts. 510 et seq. O. C] — The defendants erected their building against the plaintiffs' wall so that it served them in the way of exterior protection for the side of the new building; they con- nected the metal roof-flashing with the wall by naUs, etc., bat constructed the new worki in such a manner as to avoid depending upon the plaintiffs' wall for support and without piercing recesses in it to receive joists, etc. — Held, reversing the judgment appealed from (Q. R. 20 K. B. 524), Fitz- patrick, C.J., dissenting, that the defendants had exercised party-rights in the plaintiffs' wall and utilized it as an external wall for their building, and that they were, con- sequently, obliged to treat it as a common wall and to pay half the value of the portion thereof so utilized by them. Morgan v. Avenue Realty Co., xlvi., 589. PATENT OF INVENTION. 1. Infringement of patent of invention — EiEchequer Court Act. ss. 51 and 52 — Order postponing hearing of demurrer — Judgment — Leave to appeal.'] — ^Unless an order upon a demurrer be a decision upon the issues raised therein, leave to appeal to the Su- preme Court of Canada cannot be granted under the provisions of the fifty-first and fifty-second sections of the Exchequer Court Act, as amended by 2 Edw. VII., c. 8. Toronto Type Foundry Co. V. Mergenthaler Linotype Co., xxxvi., 593. 2. Canadian patent — Infringement — Prior foreign patent.} — In an action for infringe- ment of a Canadian patent of invention for improvements in weather strips and guides for windows, it appeared that the defendants had manufactured weather strips in Canada more similar to those described in an American patent of a prior date than to any of the forms shewn and described in the Canadian patent. The court below in dismissing the action (9 Ex. C. K. 399), held that, if the plaintiffs' patent was good, it was good only for the forms of weather strips particularly specified therein of which the evidence failed to shew any infringe- ment. This decision was afiirmed by the Supreme Court of Canada. Chamberlain Metal Weather Strip Co. v. Peace, xxxvii., 530. 3. Infringement of patent — Sale for a reasonable price — Use of patented device — Contract — "Patent Act," R. S. 0. c. 61, ». S7 — Evidence.] — The patentee of a device for binding loose sheets sold the defendant H. binders subject to the condition that they should be used only in connection with sheets supplied by or under the authority of the patentee. H. used the binders with sheets obtained from the other defendants, contrary to the condition. In an action for infringement of the patent : — Held, that the condition in the contract with H. imposing the restriction upon the manner in which- he should use the binders was not a con- travention of the provisions of section 37 of the "Patent Act" K. S. C. c. 61, in re- spect to supplying the patented invention at a reasonable price to persons desiring to use it, and that the use so made of the binders by H. was in 'breachl of the condi- tion of the contract licensing him to make use of the patented device and an infringe- ment of the patent. Judgment appealed from (10 Ex. O. R. 224), aflSrmed. Hatton V. Gopeland-Ghatterson Go., xxxvii., 651. 4. Infringement — Want of novelty — New and beneficial results — Subject matter of in- vention — Purchase of patented device — Estoppel.] — The plaintiffs were patentees of a device intended to cheapen and simplify former methods of keeping and rendering statements of accounts by merchants and others, as was claimed, by providing for mak- ing entries and invoices by one and the same act on manifolding sheets so folded as to occupy the entire platen of standard type- writers and, at the same time, without waste, to provide a binding margin for the leaf with the bookkeeping entry to utilize it as a page in a permanently bound book. The sheets manufactured and sold by the plaintiffs accomplished these ends through being folded so as to form two or three leaves, as required; with two-leaf sheets, the upper leaf forming an original or invoice and the lower leaf the duplicate and book- keeping entry ; with three-leaf sheets, the third leaf serving either as a duplicate or to be used as an original duplicated on the reverse side of the centre leaf. In each case the leaves are connected together so as to form one integral sheet with vertical and transverse score lines enabling the in- voices, etc., to be easily detached, leaving the permanently retained page and folded margia with perforations to fit binders. The specifications of the patented device suc- cinctly described and illustrated various forms of folding the sheet to secure these advantages. An action for infringement by the defendants using, manufacturing and selling sheets similar to the above described device was dismissed in ,the Exchequer Court. On appeal to the Supreme Court of Canada: Held, affirming the judgment appealed from (10 Ex. C. R. 410) that there was neither subject matter nor novelty in the above device claimed as an invention and, consequently, that it was not patent- able. Gopeland-Ghatterson Co. v. Paguette, xxxviii., 451. 5. Patent law — Canadian Patent Act — R. S. G. 1906, c. 69, s. 38— Manufacture — Sale — Lease or license.] — Under the Can- adian Patent Act the holder of a patent is obliged, after the expiration of two years from its date, or an authorized extension of that period, to sell his invention to any person desiring to obtain it and cannot claim the right merely to lease it or license its use. — Judgment of the Exchequer Court (10 Ex. C. R. 378) afiirmed. Hildreth v. McGor- miclc Mfg. Co., xxxix., 499. 6. Patent law — Novelty — Combination of known elements — Infringement — Mech- anical equivalents.] — A device resulting in the first useful and successful application of certain known arts and processes in a 833 PAYMENT. 834 new combination for manufacturing pur- poses is not unpatentable for want of novelty merely because some of the elements so combined have been previously used with other manufacturing devices. — Judgment ap- pealed from (11 Ex. C. R. 103) affirmed. Dominion Fence Co. v. Clinton Wire Cloth Co., xxxix., 535. 7. Appeal — Validity of patent ' — Matter in controversy.} — There can be no appeal to the Supreme Court of Canada in an action in respect to a patent of invention where the validity of the patent is not in question and it does not appear that the matter in controversy exceeds $1,000, the amount limited by the Act, 60 & 61 Vict. c. 34 (D.), providing for appeals from the Province of Ontario. McLaughlin v. Lake Erie and Detroit River Ry. Co., Cout Cas. 297. And see Appeal. 8. Appeal — Jurisdiction — Matter in con- troversy — Validity of patent — Special leave — R. S. C. c. 61, s. ^6'.] — Appeal from the Court of Appeal for Ontario quashed on a motion to quash the appeal for want of jurisdiction on the grounds that (1) the matter in controversy on the appeal, exclu- sive of costs, was less than $1,000, (2) the validity of the patent was not afEected, but a question involved merely as to the con- struction of a statute, and (3) that special leave to appeal had not been obtained. The appellants held letters patent of invention for a punching-bag, and respondents, be- fore the patent issued, had purchased a bag and manufactured a number from it. After the issue of the patent action was brought for infringement in selling what was left of the goods so manufactured. The respond- ents relied on R. S. C. (1886), c. 61, s. 46, which provides that a person manufacturing the subject matter of the invention, before issue of patent, could sell what he had on hand after its issue, and that such sale would not affect the patent as to other persons unless done with the consent of the patentee. The appellants claimed that the consent re- ferred to bond fide manufacture only and not to a case where the sample was procured fraudulently with the object of infringing the patent, which, to. their knowledge, had been applied for. Victor Sporting Q-ooda Co. V. Harold A. Wilson Co., Cout. Cas. 330. 9. Invention — Anticipation.} — Canadian patent No. 79302 for improvements in candy-pulling machines granted on Feb- ruary 17th, 1903, declared void for want of invention having been anticipated by earlier inventions in the United States. — Judgment of the Exchequer Court (10 Ex. C. R. 378), reversed on this point. Hildreth v. MoCor- mick Manufacturing Co., xli., 246. 10. Account — Statute of Limitations — Agents or partners — Reference — Practice, xxxviii., 216. See AccoTTNT. . 11. Contract — Assignment of patent rights — Implied warranty-^Privity — Validity of patent — Caveat emptor ^-Novelty — Com- hination — New and useful results, xliii., 182. See CONTKACT. B.cn.— 27 12. Conflicting claims — Judgment of Ex- chequer Court — Appeal to Supreme Court. Burnett v. Ilutchins Car Roofing Co., liv., 610. See Appeal. PAYMENT. 1. Company law — Payment for shares — Transfer of business assets — Debt due part- nership — Set-off — Counterclaim — Accord and satisfaction — Liability on subscription for shares — R. S. B. C. c. JfJf, ss. 50 and 51.] — On the formation of a joint stock company to take over a partnership business, each partner received a proportionate number of fully paid-up shares, at their par value, in satisfaction of his interest in the part- nership assets. — Held, reversing the judg- ment appealed from (9 B. C Rep. 301), Davies, J., dubitante, that the transaction did not amount to payment in cash for shares subscribed by the partners within the meaning of ss. 50 and 51 of The Companies Act, R. S. B. C. e. 44, and that the debt owing to the shareholders as the price of the partnership business could not be set-off nor counterclaimed by them against their individual liability upon their shares. Foth- ergill's Case (8 Ch. App. 270), followed. Turner v. Cowan, xxxiv., 160. 2. Life insurance — Condition of policy — Premium note — Payment of premium.} — When the renewal premium on a policy of life assurance became due, the assured gave the local agent of the insurance company a note for the amount of the premium, with interest added, which the agent discounted, placing the proceeds to his own credit in Lis bank account. The renewal receipt was not countersigned nor delivered to the as- sured, and the agent did not remit the amount of the premium to the company. When the note fell due, it was not paid in full and a renewal note was given for the balance which remained unpaid at the time of the death of the assured. The condi- tions of the policy declared that if any note given for a premium was not paid when due the policy should cease to be in force. — Held, affirming the judgment appealed from (38 N. S. Rep. 15), I>avies and Maclennan, JJ., dissenting, that the transactions that took place between the assured- and the agent did not constitute a payment of the premium and that the policy had lapsed on default to meet the note when it became due. The Manufacturers Accident Insur- ance Go. V. Pudsey (27 Can. S. C. R. 374), distinguished ; London and Lancashire Life Assurance Co. v. Fleming, ( [1897] A. C. 499), referred to. Hutchins v. National Life Assurance Co., xxxvii., 124. 3. Mortgage — Money advanced to con- struct buildings — Lien for materials sup- plied — Payment to contractor — Transac- tions in fraud of mortgagor's rights — Re- demption — Costs.} — ^A building and loan company advanced money to an illiterate woman for the purpose of aiding in the con- struction of a house to be erected upon lands mortgaged to it to secure the loan. The mortgage contained no provision for advances 835 PAYMENT. 836 to contractors, etc., as the work progressed, beyond the following : "And it is herel)? agreed between the parties hereto, that the mortgagees, their successors and as- signs, may pay any taxes, rates, levies, as- sessments, charges, moneys for insurance, liens, costs of suit, or matters relating to liens, or incumbrances on the said lands, and solicitors' charges in connection with this mortgage, and valuators' fees, together with all costs and charges which may be incur- red by taking proceedings of any nature in case of default by the mortgagor, her heirs, executors, administrators or assigns, and shall be payable with interest, at the rate aforesaid, until paid and, in default, the power of sale hereby given shall be forth- with exerciseable. And it is further agreed that monthly instalments in arrear shall bear interest at the rate aforesaid until paid." — In a suit for redemption : — Seld, first, that the clause in the mortgage did not justify the mortgagees in making advances to contractors and persons supplying ma- terial, without the express order of the mortgagor. — ^Secondly, that the mortgagees ought not to have recognized an order in favour of the contractor for the total amotmt of the loan, when they knew that the con- tractor had not completed his contract and was, therefore, not entitled to the money when the order contained no name of a wit- ness, and shewed that the mortgagor was unable to sign her' name. — The payment having been made by the loan company to a lumber company supplying material to the contractors for the building, without the ex- press authority of the mortgagor, and the lumber company having taken an assignment of the mortgage, and attempted to enforce it against the mortgagor, the transaction was declared fraudulent as against the mortgagor, and the payment to the lumber company dis- allowed. — Held, also, that the only costs the assignees of the mortgage were entitled to add to the mortgage debt were the costs of an ordinary redemption suit consented to by a mortgagee. — Judgment appealed from varied, and appeal dismissed with costs. Black v. Sieiert, xxxviii., 557. 4. Insolvency — Preferential transfer of cheque — Deposit in private hank — Appli- cation of funds to deit due ianker — Sinis- ter intention — Payment to creditor — B. S. 0. (1897), c. lift, s. 3 (i).]— McG., a mer- chant in insolvent circumstances, although not aware of that fact, sold his stock-in- trade and deposited the cheque received for the price to the credit of his account with a private banker to whom he was indebted, at the time, upon an overdue promissory note that had been, without his knowledge, charged against his account a few days be- fore the sale. Within two days after making the deposit, McG. gave the banker hii cheque to cover the amount of the note. In an action to have the transfer of the cheque, so deposited, set aside as preferential and void: — Held, affirming the judgment ap- pealed from (13 Ont. L. R. 232) that the transaction was a payment to a. creditor within the meaning of the statute, R. S. O. (1897), c. 147, s. 3, s.-s. 1, which was not, under the circumstances, void as against creditors. RoMnson, Little & Co. V. Soott & Son, xxxix., 281. 5. Contract — Supply of material — Certifi- cate of engineer — Condition precedent — -Im- proper interference — Fraud — Hindering per- formance of condition — Monthly estimate — Final decision. Temiskaming and Northern Ontario Ry. Co. v. Wallace, xxxvii., 696. 6. Payment — Principal and agent — Satis- faction and, discharge — Payment in advance — Custody of deeds — Notarial profession in Quebec — Art. 3665 R. S. O. — Attorney in fact — Implied mandate — Evidence — Parol — Commencement of proof in writing — Art. 1233 C. C— Admissions — Art. 315 C. P. Q. — Practice — Adduction of evidence — Objec- tions to testimony — Rule of public order, XXXV., 14. See Peincipai and Agent. 7. Debtor and creditor — Assignment of debt — Sheriff's sale — Equitable assignment — Statute of limitations — Ratification — Prin- cipal and agent, xxxv.. 583. See SHEEirr. 8. Suretyship — Collateral deposit — Ear- marked fund — Appropriation of proceeds — Set-off — Release of principal debtor — Con- structive fraud — Discharge of surety — Right of action — Common counts — Equitable re- course, xxxvii., 331. See Peincipal and Stjeett. 9. Promissory note — Protest in London, England — Notice of dishonour to indorser in Canada — Knowledge of address — First mail leaving for Canada — Notice through agent — Agreement for time — Discharge of surety — Appropriation of payments — Evidence, xxxix., 290. See Bills and Notes. 10. Banks and banking — Forged cheque — Negligence — Responsibility of drawee — Mis- take — Indorsement — Implied warranty — Principal and agent — Action — Money had and received — Change in position — Laches, xh, 366. See Banks and Banking. 11. Company — Sale of shares — Misrepre- sentation — Fraud — Action for deceit — Ac- cord and satisfaction, xl., 437. See AcooED and Satisfaction. 12. Contract — Conditional sale — Chtar- anteee — Rescission — Mortgagor and mort- gagee — Power of sale— Creditor retaking possession — Continuing liability — Appro- priation of money received by creditor — Re- lease of debtor — Discharge of surety, Cout. Oas. 217. See Chattel Moetgage. 13. Timber license — Crown lands in Brit- ish Columbia — Real estate — Personalty Contract — Sale — Exchanges-Considera- tion — Payment in joint stock shares — Ven- dor's lien — Evidence — Onus of proof — Plead- ing and practice, xliv., 458. See Lien. 14. Construction of statute — ^^.-W. Terr. Ord., 1898, c. SJf — Ewtrorjudioial seizure '■ Chattel mortgage — SaJe through bailiff 837 PBNITENTIAEY. 838 Excessive costs — Penalty — Waiver — "Banh Act," R. S. G. (1906), 0. 29, s. 91— Interest ■ — Contract — Excessive charges — Settlement of account stated — Voluntary payment — Sur- charging and falsifying — Reduction of rate — Removal of mortgaged property — Negli- gence — Measure of damages, xliv., 473. gee Chattel Moetgage. 15. Vendor and purchaser — Condition of agreement — Sate of land — Payment on ac- count of price — Cancellation — Notice — Re- turn of money paid — Rescission — Form of action — Practice, xIt., 338. See Vendob and Puechasee. 16. Banking — "Bills of Exchange Act" — Promissory note — Special indorsement — Con- dition — Pledge — Collateral security— Holder in due course — Payment and satisfaction — Liability on current account, xlvi., 564. See Banking. 17. Vendor and purchaser — Sate of land — Payment iy instalments — Specified dates — Time of essence — Forfeiture — Penalty — Payment declared to he deposit, xlix, 360. See Vendoe and Puechasee. 18. Benevolent society — Life insurance — Contract — Payment of assessments — Exten- sion of time — Rules and regulations — Place of payment — Demand — Default — Suspen- sion — Authority to waive conditions — Con- duct of officials — Estoppel — Company law, xlix., 229. See iNsmsANCE, Life. 19. Local agent of railway company — Col- lection of freight charges — Receipt delivered before payment. Continental Oil Co. v. 0. P. R., lii.; 605. See Estoppel. PENAL CLAUSE. • Pleading — Gross-demand — Compensation —Arts. S, 20S, 215, 217 G. P. Q.— Practice- Damages — Construction of contract — Liqui- dated damages— Arts. 1076, 1178, 1188 C. C. — Estoppel — Waiver, xxxvi., 347. See CoNiEACT. PENALTY. 1. Contract — Breach of conditions — Liqui- dated damages — Penalty — Cumulative remedy— Operation of tramway — Construc- tion and location of lines — Use of highways — Car service — Time-tables — Municipal control — Territory annexed after contract — Abandonment of monopoly — 55 Vict. c. 99 (Ont.), xxxvii., 430. See Tramway. 2. Canada Temperance Act — Conviction — "Criminal case"—R. S. G. (1886), o. 135, s. 32 — Habeas corpus — Penalty — "Not less than $50" — Conviction for $200 — Imposition of fine for first ofence — Powers of Supreme Court judge — Reference of application to full court, xxxviii., 394. See "Canada Tempeeance Act." 3. Vendor and purchaser — Sate of land — Payment by instalments — Specified dates — Time of essence — Forfeiture — Payment de- clared to be deposit, xlix., 360. See Vendor and Puechasee. 4. Contract — Delivery — Specified time — Default — Liquidated damages — Per-estimate — Inexecution — Compensation — Gross-de- mand — Practice. Can. Gen. Elec. v. Can. Rubber, Hi., 349. See Contract. PENITENTIARY. 1. Commitment — Imprisonment in peni- tentiary — Form of warrant — Venue — Com- mencement of sentence.] — The certified copy of sentence is sufficient warrant for the im- prisonment of a convict in the penitentiary and it is not necessary that it should con- tain every essential averment of a formal conviction. — Where the venue is mentioned in the margin of a commitment, in the case of an offence which does not require local description, it is not necessary that the warrant should describe the place where the offence was committed. — ^A warrant of commitment need not state the time from which the term of imprisonment shall begin to run, as, under the seventh sub-section of section 955 of the Criminal Code, terms of imprisonment commence on and from the day of passing of the sentence. Ex parte Smitheinan, xxxv., 189. 2. Commitment — Sentence — Form of war- rant.] — Under s. 42 of "The Penitentiary Act," R. S. C, 1886, c. 182, a copy of the sentence of the trial court certified by a judge or by the clerk or acting clerk of that court is a sufficient warrant for the commitment and detention of the convict. Smitheman v. The King, xxxv., 490. And see Cbiminal Law. 3. Constitutional law — Penitentiaries — Imprisonment of criminals — Expense of maintenance — B. N. A. Act, 1867 — Legisla- tive jurisdiction of Parliament — Provincial legislation.] — The legislative jurisdiction of the Parliament of Canada in respect to the establishment, maintenance and management of penitentiaries, cannot be in any way limited, restricted or affected by any pro- vincial legislation in the Province of New Brunswick, either previous or subsequent to the confederation of the provinces under the British North America Act, 1867. — Where no Dominion statute authorizes the confinement in a penitentiary of certain classes of convicts, who, before the B. N. A. Act, 1867, came into force, might, under the laws then in force, have been sentenced to imprisonment and confined in the Saint John Penitentiary, there is no obligation upon the Government of Canada to make provision for their imprisonment and main- tenance at the expense of the Dominion, in the penitentiary. In re New Brunswick Penitentiary, Cout. Oas., 24. And see Constitutional Law. 839 PILOTAGE. 840 PENSION. Appeal — Jurisdiotion — Life pension ' — Amount in controversy — Actuaries' tables.] — The action for $62.50, the first monthly instalment of a life pension, at the rate of $750 per annum claimed by the plaintiff, for a declaration that be was entitled to such annual pension from the society, pay- able by equal monthly instalments of $62.50 each, during the remainder of his life, and for a condemnation .against the soci delicto was in- stituted against a minor without impleading a tutor to assist him, and the exception of minority was set up. Proceedings taken by the plaintiff to have a tutor appointed had not been concluded when the defendant be- came of age and an order, which was dis- regarded by the defendant, was then ob- tained requiring Mm to plead to the action. On a summons for his examination swr faits et articles, defendant appeared and certain objections to questions were made by counsel on his behalf. On an inscription for judgment etc parte, subsequently filed, judgment was entered against him. — Held, per Idington, Duff and Brodeur, JJ., that irregularities of procedure in a court of first instance are matters to be dealt with by the judges of that court and, unless some prejudice has resulted therefrom, the discre- tion exercised by such judges in respect thereto ought not to be disturbed by an ap- pellate court. — Per Idington, Duff and Bro- deur, JJ., Fitzpatrick, 'C.J., and Anglin, J., contra. In the circumstances the defendant suffered no prejudice within the meaning of article 174 of the Code of Civil Procedure. The exception resulting from minority is relative merely and may be waived by a defendant, sued during his minority, without the necessary assistance required by law, appearing after attaining majority and tak- ing objections to subsequent proceedings in the action. He cannot, thereafter, com- plain of being treated as a defendant pro- perly cited before the court nor of a judg- ment ex parte entered against him therein. — Per Idington, Duff and Brodeur, JJ. — Ir- regularity in inscription for judgment ew parte is not a reason for the dismissal of an action. — Per Fitzpatrick, CJ., and Anglin, J., dissenting. — The fact that the defendant was a minor at the time of the institution and service of the action and that no tutor or curator was made a party to the suit for the purpose of assisting him therein consti- tutes an absolute bar to the action which could not be validated in consequence of further proceedings therein after the defen- dant attained the age of majority. The ac- tion was a nullity ab initio and, conse- quently, the defendant suffered prejudice within the meaning of art. 174 O. P. Q. Larue v. Poulin (9 Que. P. R. 157). Fair- hanks V. Howley (10 Que. P. R. 72), and Robert v. Dufresne (7 Que. P.R. 226), re- ferred to. Serling v. Levine, xlvii., 103. 8. Action — Public officer — Notice — Notary public — Principal and agent — Mandate — Pleadings — New objections on appeal — Case on appeal — Notes of reasons by judges —Findings of fact— Art. 88 C. P. Q.]— -If a defendant has not, in the courts below, taken exception to want of notice of ac- tion, as required by article 88 of the Code of Civil Procedure of Quebec, it is doubtful whether the objection can be urged on an appeal to the Supreme Court of Canada. Devine v. Holloway (14 Moo. P. C. 290) referred to. — Where the defendant has not been sued in an action for damages by rea- son of an act done in the exercise of a pub- lic function or duty, the provision of article 88 'C. P. Q., as to notice of action against a public ofiBcer, has no application. — The Su- preme Court of Canada ought not, in ordi- nary cases, to take into consideration the notes of reasons for judgments in the courts below which have not been delivered before the settling of the case on the appeal : May- hew v. Stone (26 Can. S. C R. 58) fol- lowed. In a proper case, however, when the non-delivery of such notes is satisfac- torily accounted for, the court may permit them to be filed and made use of as part of the record on the appeal: Canadian Fire Insurance Co. v. Robinson, (Cout. Dig. 1105) referred to. — The court refused ' to reverse the concurrent findings of fact by the courts below. Dufresne v. Desforges, xlvii., 382. 9. Action — Damages — Timber on pre- empted lands — Rights of pre-emptor — B. C. "Land Act," R. 8. B. C, 1911, o. 129, ss. 77 et seq. and 1S2 — Issue on appeaV— Negli- gence — Fire set by railway locomotive — As- sessment of damages — Findings of trial judge.] — A pre-emptor of Crown lands, under the provisions of the British Columbia "Land Act," R. S. C. 1911, c. 129, who has not forfeited his rights, is entitled to maintain an action for such damages as he has sustained in consequence of the destruc- tion of timber growing upon his pre- empted lands. — ^As to the quantum of dam- ages, the trial judge, following Schmidt V. Miller (46 Can. S. C. R. 45), held that the respondent was entitled to recover the fuU value of the standing timber destroyed. All evidence bearing upon the question of respondent's interest was omitted in print- ing the case on appeal, and the point was not taken in the Court of Appeal or in the appellant's factum on the present appeal. The decision of the Supreme Court of Can- ada in Schmidt v. Miller was, subsequently, reversed on appeal to the Privy Council ([1914] A. C. 197), and the point was raised upon the hearing of the present ap- peal that the respondent's damages should be reduced in consequence of his limited interest in the timber destroyed. — Seld, that, in these circumstances, the conten- tion in respect to the pre-emptor's limited interest in th« property destroyed (the evi- dence bearing upon it having been omitted from the appeal case) was not open for consideration in the Supreme Court of Can- ada. — The court refused to disturb findings of the trial judge, based upon suflBcient. evi- dence, or the assessment of damages made by him as limited by s. 298 of the "Railway Act," R. S'. C, 1906, c. 37. The judgment appealed from (12 D. L. R. 425) was af- firmed. Canadian Pacifio Ry. Co. v. Kerr, xlix., 33. 10. Action by dependents — B. C. "Fami- lies Compensation Act" — Release by deceased ■ — Defence to action — Repudiation — Fraudr — Setting aside release — Personal repre- sentative — Right of action — Return of money paid — Limitation of a^ctiorir-^Qeneral statu- tory provision — Carriers — Private Act — B. C. "Consolidated Railway Co.'s Act" — Statute— R. S. B. C, 1911, c. 82— "Lord Campbell's Act" — {B.C.) 59 Vict., c. 35, s. 60.] — ^Where a release by the deceased is relied upon by the defendants in an action for damages by his dependents, under the provisions of the "Families Compensation Act," R. S. B. C, 1911, c. 82, the plain- 861 PEACTICE AND PEOCEDUEE. 863 tiffs may take exception to the release on the ground that it was fraudulently pro- cured, although the personal representative of the deceased has not been made a party to the action. The judgment appealed from (18 B. C. Rep. 132), was affirmed.— Such an exception may be entertained by a court of equity notwithstanding that the money paid as consideration for the release is neither tendered back to the defendants nor brought into court to abide the issue of the action. Lee v. Lancashire and Yorkshire By. Go. (6 Ch. App. 527) ; Read v. Great Eastern By. Go. (L. R. 3 Q. B. 555) ; Boh- inson v. Canadian Pacific By. Go. ((1892) A. C. 481) ; Bideal v. Great Western By. Co. (1 F. & P. 706) ; Clough v. London and North Western By. Go. (L. R. 7 Ex. 26) ; Seward v. The "Vera Cruz" (10 App. Cas. 59) ; Pym v. Great Northern By. Go. (2 B. & S. 759 ; 4 B. & S. 396) ; Williams V. Mersey Docks and Bariour Board ( (1905), 1 K. B. 804) ; Erdman v. Walkerton (20 Out. App. R. 444), and Johnson v. Grand Trunk By. Co. (21 Ont. App. B. 408), referred to.— By s. 60 of the "Consolidated Railway Com- pany's Act" (B.C.), 59 Vict., c. 55, actions for damages or injury sustained by reason of a tramway or railway, or the works or operations of the company, are subject to a limitation of six months. — Held, that the limitation thus provided for the protection of a private corporation had not the effect of altering the general limitation of twelve months provided by the fifth section of the "Families Compensation Act," R. S. B. C, e. 82. Green v. British Columbia Elec- tric By. Co. (12 B. C. Rep. 199) ; Can- adian Northern By. Co. v. Bobinson (43 Can. S. C. R. 387) ; Zimmer v. Grand Trunk By. Co. (19 Ont. App. R. 693) ; Markey v. Tolworth Joint Isolation Hospital District ((1900) 2 K. .B. 454), and Williams v. Mersey Dock and Harbour Board ( (1905) 1 K. B. 804), referred to.— Per Duff, J.— Section 60 of the "Consolidated Railway Company's Act," (B.C.) 59 Vict. c. 55, has no application to an action brought against the company for breach of duty as a car- rier. Sayers v. British Columbia Electric By. Co. (12 B. C. Rep. 102), referred to. (Leave to appeal to Privy Council refused, 2nd July, 1914.) British Columbia Elec- tric By. Co. V. Turner, xlix., 470. 11. Appeal — Expropriation — AppUcation to appoint arbitrator — Persona designata — Amount in controversy — "Bailway Act," B. S. C. 1908, c. ST, s. 196— Jurisdiction of court.^ — ^A railway company served notice of expropriation of land on the owner, of- fering $25,000 as compensation. It later served a copy of said notice on S., lessee of said land for a term of ten years. On ap- plication to a Superior Court judge for ap- pointment of arbitrators S. claimed to be entitled to a separate notice and an inde- pendent hearing to determine his compensa- tion. The judge so held and dismissed the application, and bis ruling was affirmed by the Court of King's Bench. The company sought to appeal to the Supreme Court of Canada. — Held, per Fitzpatrick, C.J. and Idington, J., following Canadian Pacific Bailway Co. v. lAttle Seminary of -Ste. Therise (16 Can. S. C. R. 606), and St. Hilaire v. Lambert (42 Can. S. C. R. 264), that the Superior Court judge was persona designata to hear such applications as the one made by the company ; that the case, therefore, did not originate in a Superior Court and the appeal would not lie. — Per Duff, J.— The judge, under s. 196 of the "Railway Act" acts as persona designata and no appeal lies from his orders under that section ; — in this case, the application having been made to and the parties hav- ing treated the contestation as a proceed- ing in the Superior Court, which had no jurisdiction, the Court of King's Bench rightly dismissed the appeal from the order refusing to appoint arbitrators ; and the appeal to the Supreme Court of Canada be- ing obviously baseless should for that rea- son be quashed. — Held, per Davies, Duff, Anglin and Brodeur, JJ., that as there was nothing in the record to shew that the amount in dispute was $2,(XX) or over, ^and no attempt had been made to establish by affidavit that it was, the- appeal failed. Canadian Northern Ontario Bailway Co. v. Smith, 1., 476. 12. Company — • Dominion corporation — Provincial registration — Juristic disability — Bight of action — Contract — Carrying on business within province — Legislative jur- isdiction — B. 8. Sash. 1909, c. 73, ss. 3, 10 — Non-compliance with S. G. Bute — Fac- tum.] — ^A company, having its chief place of business in the Province of Quebec, and incorporated under the Dominion statute with power to trade and carry on its busi- ness throughout the Dominion of Canada, did not comply with the provisions of the "Foreign Companies Act," R. S. Sask., 1909, c. 73, requiring registration previous to carrying on business within the Province of Saskatchewan. In the ordinary course of its business, it sold and brought certain machinery into the province, and did the work of installing it therein for a price which included setting it up and starting it working. An action for the contract price was dismissed by the judgment of the trial court (6 West. W. R. 1159), and this judg- ment was affirmed by the Supreme Court of Saskatchewan, on the ground that the un- registered extra-provincial company was de- nied the right of action in the courts of the province by the tenth section of the "Foreign Companies Act." — On appeal to the Su- preme Court of Canada, the judgment ap- pealed from (7 West. W. R. 89), was re- versed. — Per Idington, J. — The mere setting up and starting the working of the machin- ery by the extra-provincial company did not constitute the carrying on of business in the Province of Saskatchewan within the mean- ing of the '^Foreign Companies Act." Per Anglin, J. — The installation of the plant wag a substantial part of the consideration of the contract and, consequently, the unregistered extra-provincial company would be denied the right of enforcing its claim by action in the courts of the province under the provi- sions of the tenth section of the "Foreign Companies Act," but, inasmuch as the leg- islation in question had the effect of depriv- ing the extra-provincial company of the status, capacities and powers which were the natural and logical consequences of its incorporation by the Dominion Government, it is ultra vires of the provincial legislature 863 PEACTICE AND PEOCEDUEE. 864 and inoperative for the purpose of depriv- ing the company of its right to maintain the action in the provincial courts. John Deere Plow Company v. Wharton ([1915] A. C. 330), applied. — Costs were refused the appellant, on the allowance of the appeal, in consequence of non-compliance with Su- preme Court Rule No. 30 in respect of the printing of the statutes regarding which questions were raised. Linde Canadian Re- frigerator Co. V. Saskatchewan Creamery Co., li., 400. 13. Contract iy municipal corporation — By-law or resolution — Right of action — Pleading — Estoppel, xxxiv., 495. See Evidence. 14. Agreement for the sale of land — Falsa demonstratio — Position of vendor's signa- ture — Specific performance, xxxv., 282. See Specific Pekfoemanoe. 15. Mineral claim — Expropriation — Watercourses — Trespass — Damages — Waiver — Injunction, xxxv., 309. See Practice. 16. Sale of goods — Suspensive condition — I'erm of credit— Delivery^Pledge — Ship- ping mis — Bills of lading — Indorsement of bills — Notice — Fraudulent transfer — Insol- vency — Banking — Bailee receipt — Brokers and factors — Principal and agent — Resilia- tion of contract — Revendication — Damages — Pleading, xxxvi., 406. See Sale. 17. Signification of assignment — Accept- ance hy debtor — Right of action, xxxvi., 686. See Action. 18. Tenant by sufferance — Use and occu- pation of lands— Art. 1608 C. C. — Promise of sale — Vendor and purchaser — Reddition de compte — Actio ex vendito, xxxvii., 627. See Action. 19. Title to land — Ownership — Artificial watercourse — Canal banks — Trespass — Pos- sessory action — Bornage, xxxvii., 668. See Title to Land. 20. Grown — Banks and banking — Forged cheque — Payment — Representation by drawee — Implied guarantee — Estoppel — .i.c- knowledgment of bank statements — lAabiliiy of i/ndorsers — Mistake — Action — Money had and received, xxxviii., 258. See Banks and Bankinu. 21. Possessory action — Trouble de pos- session — Right of action — Actio negatoria servitutis — Trespass — Interference with watercourse — Agreement as to user — Ex- piration of license by non-use — Tacit renewal — Cancellation of agreement — Recourse for damages, xxxix.,. 81. See Pbacticb. 22. Title to land — Trespass — Conventional line — Boundary — Agreement at trial — Plead- ing, Cam. Gas., 171. See Trespass. 23. Chattel mortgage — Fraudulent con- veyance — Pleading — Approbating and re- probating transaction — Right to redeem — Oral evidence to vary deed — -Sheriff's sale — Equity of redemption '■ — Execution, Cam. Cas., 251. See Pleading. 24. Action by divorced wife — Authoriza- tion — Decree by foreign court — Jurisdiction — Comity of nations — Arts. 176, 178 C. 0. —Art. U C. C. P., Cam. Cas. 392. See DrvoECE. 25. Appeal — Jurisdiction — Title to land — Action possessoire — Demolition of works — Matter in controversy, Cout. Cas. 141. See Peactice. 26. Construction of sewers — Nuisance — Injunction — Damages — Right of action, Cout. Cas., 162. See Peactice. 27. Breach of trust — Interest on bonds — Unlawful act? by Crown officials — Withhold- ing interest from Grown — Necessity of im- pleading other interested parties, Cout. Cas. 316. See Peactice. 28. Appeal — Jurisdiction — Alberta Liquor License Act — Cancellation of license — Per- sona designata — Curia nominatim — "Origin- ating summons" — Court of superior juris- diction. St. Sitaire v. Lambert, xlii., 264. See Appeax. 29. Misjoinder — Common law liability — Different causes of action. Grand Trunk Pacific V. White, xliii., 627. See Statute". 30. Jurisdiction — Service out of jurisdic- tion — Attachment — Manitoba King's Bench Rules 201, 202 — Non-resident foreigner — Detention of goods pending suit — Substitu- tional service — Consolidating appeals to Su- preme Court of Canada — Questions of prac- tice. Emperor of Russia v. Proskouria- koff, xlii., 226. 31. Appeal — Jurisdiction — Matter in con- troversy — Sta/re decisis — Municipal by-law -^Injunction — Contract — Collateral effect of judgment — Construction of statute — "Su- preme Court Act," R. S. C. (1906), c. 139, ss. 36, 39 (c), 46. Shawinigan Sydro-Elec- tric Go. v. Shawinigan Water, etc., xliii., 650. ' See Appeal. 32. Vendor and purchaser — Price of land sold — Payment on account — Condition of agreement — Notice — Cancellation — Return of money paid — Rescission — Form of action xlv., 338. ' See Vendoe and Pubohasee. 33. Arbitration — Award — Procedure Prolonging date for award — Special circum- stances — "Railway Act," R. S. G IQOH /. 37, s. 204. Gwn. Nor. Que. R. R.'x N^ud xlviii., 242. " • See Aebii?eation and Awaed. 865 PEACTICE AND PEOCEDUEE. 866 34. Statute — "Colonial Courts of Admir- alty Act, 1890," (Imp.) 53 & 54 Vict., o. 27 — "Public Authorities Protection Act, 1892," (Imp.) 56 & 57 Vict., o. 61—IAmitar tion of actions — Effect of statutes — Jurisdic- tion, xlli., 627. See Statute. 35. Appeal — Expropriation — Application to appoint arbitrator — Persona designata — Amount in controversy — "Railway Act," B. S. C. 1906, c. 31, s. 196-^urisdiction of Court. C. N. O. li. B. Co. y. Smith, 1., 476. See Appeal. 36. Appeal — Case originating in Superior Court — "Supreme Court Act," s. 37 (6) — Concurrent jurisdiction — "Mechanics' Lien Act" (B.C.) — Action to enforce lien. Champion v. World Bldg. Co., 1., 382. See Appeal. 37. Company — Dominion corporation — Provincial registration — Juristic disability — Bight of action — Contract — Carrying on business within province — Legislative jur- isdiction— B.. S. Sask. 1909, c. 73, ss. S, 10 — Non-compliance with 8. C. Bules — Costs. Linde Refrig. v. Sask. Creamery, li., 400. See Company. 38. Bight of action — Status of plaintiff — Shareholder in joint-stock company — Bate- payer — Special injury — Public interest — Prosecution by Attorney-General — Practice —Art. 978 C. P. Q. Robertson v. Mont- real, lii., 30. See Mtjnicipai, Corporation. 39. Action by dependent — Injury sus- tained outside province — Bight of action in Manitoba — Evidence — Answers by jury. Lewis V. a. T. P. B. R., lii., 227.- See Negligence. 40. Pilotage authority — Compulsory re- tirement of- pilot — Judicial function — Lia- bility to action. McQiUivray v. Kimber, lii., 146. See Pilots. 41. Construction of statute — Betrospec- tive legislation — Illegality of contract — Be- tcission — Recovery of money paid — Right of action — Practice — Pleadmg — Appeal. Boulevard Heights v. Veilleuao, lii., 185. See Statute. 42. Appeal — Jurisdiction — Matter origin- ating in inferior court — Transfer to superior court — Extension of time for appealing — Special leave — "Supreme Court Act," R. 8. C, 1906, c. 139, ss. 37c, 71, liii., 15. See Appeal. 3. Admissions. 43. Contract by municipal corporation ■ — Powers — By-law or resolution — Right of ac- tion — Confession of judgment — Evidence — Admissions — Pleading — Estoppel by record — Art. 1245 C. C. — Concurrent findings of fact — Practice on appeal, xxxiv., 495. See Evidence. 44. Principal and agent — Satisfaction and discharge — Payment in advance — Custody of deeds — Notarial profession in Quebec — Art. 3665 R. 8. Q. — Attorney in fact — Implied mandate — Evidence — Parol — Commence- ment of proof in writing — Art. 1233 0. C. — Admissions — Art. 316 C. P. Q. — Practice — Adduction of evidence — - Objections to testimony — Rule of public order, xxxv., 14. See Pbinoipal and Agent. 4. Amendment. 45. Appeal — Discretion — Amendment — Formal judgment:'] — ^The Supreme Court should not interfere with the exercise of discretion by a provincial court in refus- ing to amend its formal judgment. — Such amendment is not necessary in a mining case where the mining regulations operate to give the judgment the same effect as it would have if amended. Creese v. Fleischman, xxxiv., 279. 46. Pleading — Amendment ordered by the court — Married woman — Legal community — Bight of action — Beprise d'instance- — Arts. 78, m, 176 C. P. Q.—B. 8. C. c. 135, ss. 63, 64. North Shore Power Co. v. Duguay, xxxvii., 624. 47. Bequ4te civile — Amendment — Supreme Court Act, s. 63 — Discretion — Order nunc pro tunc, xxxiv., 13. See Practice. 48. Controverted election — Personal cor- ruption — Charge in petition — Judge's report — Adjudication — Amendment — Evidence, xxxvii., 563. See Practice. 49. Life insurance — Warranty — Mis- statements — Concealment of material facts — Pleading — Questions at issue — Findings of fact- — Amendment — Successful party moving against findings. Cam. Cas., 463. See Insurance, Lite. 50. Questions in controversy — Damages — Amendment of pleadings — Verdict, Cout. Cas., 326. See Practice. 51. Amendment of pleadings — Discretion- ary order — Final judgment — Appeal, Cout. Cas. 386. See Practice. 5. Appeals. 52. Time for appealing — Expiration of time limit — Extending time.] — The time for bringing an appeal cannot be extended after the expiration of the sixty days from the pronouncing or entry of the judgment ap- pealed from to permit of an application fcr s.c.D. — 28 867 PRACTICE AND PEOCEDUEE. &'68 sneeial leave which must be made within the sixty days. Canadian Mutual Loan & Investment Co. v. Lee, xxxiv., 224. And see Appeal. 53. Appeal — Order for new trial — Weight of evidence — Discretion — I^ew grounds on appeal.'] — ^Where the court whose judgment is appealed from ordered a new trial on th'e ground that the verdict was against the weight of evidence: — Held, that this was not an exercise of discretion with which the Supreme Court of Canada would re- fuse to interfere, and the verdict at the trial was restored. — The argument of an ap- peal to the Supreme Court of Canada must be based on the facts and confined to the grounds relied on in the courts below. Con- federation Life Association v. Borden, xxxiv., 338. 54. Appeal — Exception — Pleading — Ac- quiescence — Art. 1220 G. P. Q. — Varying minutes of judgment — Costs.] — ^Where a re- spondent, on an appeal to the court below, has failed to set up the exception resulting from acquiescence in the trial court judg- ment, as provided by article 1220 of the Code of Civil Procedure, he cannot, after- wards, take advantage of the same objec- tion by. motion to quash a further appeal to the Supreme Court of Canada. — On an ap- plication to vary the minutes of judgment, as settled by the registrar, for reasons which had not been mentioned at the hearing of the appeal, the motion was granted, but without costs. Chamhly Mfg. Co. v. Willett, xxxiv., 502. And see Contract. 55. Court of equity — Title to land — De- claratory decree — Cloud on title — Injunction — New grounds on appeal.] — A court of equity wiU not grant a decree confirming the title to land claimed by possession under the statute of limitations nor restrain by injunction a person from selling land of an- other. — The Chief Justice took no part In the judgment on the merits and Sedgewick, J., dissented from the judgment of the ma- jority of the court. — Per Taschereau, C.J. — Where leave to appeal per saltum has been granted on the ground that the court of last resort in the province had already de- cided the questions in issue the appellant should not be allowed to advance new grounds to support his appeal. Miller v. Robertson, xxxv., 80. 56. Foreclosure of mortgage — Redemption — Assignment pending suit — Practice — Pro- cedure in court below — Costs.] — This action was one of several suits affecting the title to lands under circumstances stated by Mr. I Justice Moss in 2 Ont. L. R., at pages 500- 504. The 'Supreme Court refused to inter- fere with the decision of the provincial court on matters of procedure, but, under the special circumstances of the case, the court dismissed the appeal without costs. CHbson V. Nelson, xxxv., 181. 57. Appeal — Security for costs — Waiver — Consent.] — The case on appeal to the Supreme Court of Canada cannot be filed unless security for the costs of the appeal is furnished as required by s. 46 of the Act. The giving of such security cannot be waived by the respondent nor can the amount fixed by the Act be reduced by his consent. Holsten v. Cockburn, xxxv., 187. 58. Appeal — Special leave — 60 & 61 Vict, c. 34, s. 1 (D.)]- — 'Special leave to appeal from a judgment of the Court of Appeal for Ontario (60 & 61 Vict. c. 34, s. 1 (D.), may be granted in a case involving mat- ters of public interest, important questions of law, construction of imperial or Domin- ion statutes, a conflict between Dominion and provincial authority, or questions of law applicable to the whole Dominion. Though a case is of great public interest and raises (important questions of law, leave will not be granted if the judgment complained of is plainly right. Lake Erie and Detroit River Ry. Co. v. Marsh, xxxv., 197. 59. Appeal per saltum — Time limit — Pro- nouncing or entry of judgment.] — To deter- mine whether the sixty days, within which an appeal to the Supreme Court must be taken, runs from the pronouncing or entry of the judgment from which the appeal is taken no distinction should be made be- tween common law and equity cases. The time runs from the pronouncing of judg- ment in all cases except those in which there is an appeal from the registrar's set- tlement of the minutes or such settlement is delayed because a substantial question affecting the rights of the parties has not been clearly disposed of by such judgment. County of Elgin v. Robert, xxxvi., 27. 60. Reversing on appeal — Concurrent find- ing in courts below,] — It is the duty of the Supreme Court, if satisfied that tbe judg- ment in appeal is erroneous, to reverse it even when it represents the concurring view of three, or any number of, successive courts before which the case has been heard. Hood V. Eden, xxxvi., 476. And see Cwmpant. 61. Appeal per saltum — Winding-up Act — Application under s. 76 — Defective pro- ceedings.] — Leave to appeal per saltum, under s. 26 of the Supreme Court Act, can- not be granted in a case under the Domin- ion Winding-up Act. — An application under s. 76 of the Winding-up Act, for leave to appeal from a judgment of the Supreme Court of New Brunswick was refused where the judge had made no formal order on the petition for a winding-up order and the pro- ceedings before the full court were in the nature of a reference rather than of an appeal from his decision. In re Cushing Sulphite Fibre Co., xxxvi., 494. 62. Comments in factum — Irrelevancy — Costs.] — Comments in the appellants' factum relating to a judgment of the Wreck Com- missioner's Court, which did not form any part of the record, were ordered to be struck out, with costs to the respondents. (Appeal to Privy Council dismissed. F 19071 A. O. 112). SS. "Cape Breton" v. Riche- lieu and Ontario Navigation Co., xxxvi 564. ■' And see Admikaltt Law. 869 PEACTICE AJ«fD PEOCEDUIiE. 870 63. Bemittmg case to court below — Mo- tion while case pending for judgment — 'New evidence.} — A motion made, while the case was standing for judgment, to have the case remitted back to the courts below for the purpose of the adduction of newly-dis- covered evidence as to the refusal of Par- liament to make a declaration in the pre- amble of a statute was refused with costs. Hewson v. Ontario Power Co., xxxvi., 596. And see CONsnTUTiONAL Law. 64. Appeal to Privy Council — Colonial Courts of Admiralty Act, 1890 (Imp.) — Bight of appeal de piano — Bail for costs.} ■ — Upon the application of the appellants (30th March, 1906), for an order to fix bail on a proposed appeal direct to His Majesty in Council, under the rules estab- lished by the Colonial Courts of Admiralty Act, 1890 (Imp.), the Supreme Court of Canada, sitting in banco, after hearing counsel for and against the application, made an order pro formd, (without express- ing any opinion as to the right of appealing de piano), that the appellants should give bail to answer the costs of the proposed appeal in the sum of £300 sterling, to the satisfac- tion of the registrar of the Supreme Court of Canada, on or before the 4th of April, 1906.— [Note. — In The "Cape Breton" v. Richelieu and Ontario Nav. Co. (36 Can. S. C. R. 592) a similar order was made by a judge in chambers, and the appeal was heard by the Judicial Committee with- out an order for leave, 48 Oan. Gaz. •279.] The "Albano" v. The "Parisian," xxxvii., 301. 65. Equal division of opinion — Appeal dis- missed without costs.] — Upon an equal divi- sion of opinion among the judges who heard the arguments, the appeal stood dismissed without costs. Coti v. The James Richard- son Co., xxxviii., 41. 66. Appeal — Jurisdiction — Discretion of Governor in Council — Stated case — Railway subsidies — Construction of statute — S JUdw. VII. c. 57 — Conditions of contract — Estimat- ing cost of constructing line of railway — Rolling stock and equipment.] — Where the jurisdiction of the Supreme Court of Canada to entertain an appeal was in doubt, but it was considered that the appeal should he dismissed on the merits, the court heard and decided the appeal accordingly. (Cf. Bain v. Anderson d Co. (28 Can. S. C. R. 481). Canadian Pacific Ry. Co. v. The King; Re Pheasant Hills Branch, xxxviii., 137. 67. Shipping — Collision — Violation of rules not affecting accident — Steering wrong course.] — The Supreme Court will not set aside the finding of a nautical assessor on questions of navigation adopted by the local judge unless the appellant can point out his mistake and shew conclusively that the judg- ment is entirely erroneous. The Picton (4 Can. S. C. K. 648), followed. SS. "Arran- more" v. Rudolph, xxxviii., 176. And see Ships and Shipping. 68. Criminal law — Crown case reserved — Appeal — Extension of time for notice of ap- peal — "Criminal Code" s. 1024 — Order after expiration of time for service of notice — Jurisdiction.] — The power given by s 1024 of the "Criminal Code" (R. S. C. (1906), c. 146), to a judge of the Supreme Court of Canada to extend the time tor service on the Attorney-General of notice of an ap- peal in a reserved Crown case may be ex- ercised after the expiration of the time limited by the code for the service of such notice. Banner v. Johnston (L. R. 5 H. L. 157) and Vaughan v. Richardson (17 Oan. S. C. R. 703), followed. Gilbert v. The King, xxxviii., 207. 69. Appeal — Order extending time— Jur- isdiction — R. S. C. (1886) c. 135, s. Jfi — Practice.] — ^The court refused to entertain a motion to quash the appeal on the ground that it had not been taken within the sixty days limited by the statute and that an order by a judge of the court appealed from after the expiration of that time was ultra vires and could not be permitted under s. 42 of the Supreme and Exchequer Courts Act, R. S. C. c. 135. Temiscouata Ry. Go. V. Clair, xxxviii., 230. And see Tbespass. 70. Appeal — Findings of fact.] ■ — The judgment appealed from was reversed, on the ground of captation and undue influence, but the Supreme Court of Canada refused to interfere with the concurrent findings of both courts below against the contention as to the testator's unsoundness of mind. Mayrand v. Dussault, xxxviii., 460. And see Will. 71. Appeal — Amount in controversy — Cre- ditor's action — Transfer of cheque — Prefer- ence.] — An action was brought by credi- tors, on behalf of themselves and all other creditors, of an insolvent to set aside the transfer of a cheque for $1,172.27, made by the insolvent to S. & Son, as being a preference and therefore void. At the trial the action was dismissed and this judgment was affirmed by the Divisional Court (12 Ont. L. R. 91), and by the Court of Ap- peal (13 Ont. L. R. 232). On appeal to the Supreme Court of Canada : — Held, Gir- ouard, J., dissenting, that the only matter in controversy was the property in the sum represented by the cheque and such sum being more than $1,000 the appeal would lie. Robinson, Little & Co. v. Scott kS Son, xxxviii., 490. 72. Criminal law — Stated case — Dissent in Court of Appeal — Practice — Special leave for appeal^R. S. C. (1906) c. 1S9, s. 37 (c).] — In an appeal from the judgment of the Supreme Court of the North-West Ter- ritories, in banco, whereby the conviction of the respondent was quashed, two of the judges dissenting, special leave for the ap- peal was granted on motion before the full court, under the provisions of R. S. C. (1907), c. 139, s. 39 (c)on the 19th of February, 1907. Lafferty v. Lincoln, xxxviii., 620, 625. And see Constitutional Law. 73. Appeal to the Court of King's Bench — Time limit — Appeal by opposite party to Court of Review— Arts. 957, 120S, 1209 C. p., Q, — Pleading and practice — Injunction — 871 PEACTICE AND PROCEDUEE. 872 Disoretionary order — Reversal on appeal — Possessory action — Trouble de possession — Right of action — Actio negatoria servitutis — Trespass — Interference with watercourse — Agreement as to user — Expiration of license iy non-use — Tacit renewal — Cancellation of agreement — Recourse for damages — Appeal as to question of costs only.J — An appeal from a judgment of the Superior Court, rendered on the trial of a cause, will lie to the Court of King's Bench, appeal side, if taken within the time limited by article 1209 of the Code of Civil Procedure of Quebec, notwithstanding that, in the meantime, on an appeal by the opposite party, the Court of Review may have rendered a judgment affirming the judgment appealed from. — ^Al- though' the granting of an order for in- junction, under article 957 of the Code of Civil Procedure of Quebec, is an act de- pendent on the exercise of judicial discre- tion, the Supreme Court Of Canada, on an ap- peal, reversed the order on the ground that it tad been improperly made upon evidence which shewed that the plaintiff could, other- wise, have obtained such full and complete remedy as he was entitled to under the circumstances of the case. Davies and Iding- ton, JJ., dissenting, were of opinion that the order had been properly granted. — A possessory action will not lie in a case where the trouble de possession did not occur in consequence of tte exercise of an adverse claim of right or title to the lands in ques- tion, and is not of a permanent or recur- rent nature. Davies and Idington, JJ., dis- senting, were of opinion that, under the cir- cumstances of the case, a possessory action would lie. — P. brought an action au pos- sessoire against the company for interfer-' ence with his rights in a stream, for dam- ages and for an injunction against the commission or continuance of the acts com- plained of. On service of process, the com- pany ceased these acts, admitted the rights and title of P., alleged that they had so acted in the belief that a verbal agreement made with P. some years previously gave them permission to do so, that this license had never been cancelled, but was renewed from year to year and that, although the privilege had not been exercised by them during the two years immediately preceding the alleged trespass in 1904, it was then still subsist- ing and in force, and tendered $40 in com- petsation for any damage caused by their interference with P.'s rights. — Held, revers- ing the judgment appealed from, Davies and Idington, JJ., dissenting, that, as there had been no formal cancellation of the verbal agreement or withdrawal of the license thereby given, it bad to be regarded, not- withstanding non-user, as having been tacitly renewed, that it was still in force in 1904, at_ the time of the acts complained of and that P. could not recover in the action as instituted. The Chief Justice, on his view of the evidence, dissented from the opin- ion that the agreement had been tacitly re- newed for the year 1904. — Per Davies and Idington, J J. (dissenting). As the appeal involved merely a question as to costs, it should not be entertained. Chicoutimi Pulp Co. V. Price, xxxix., 81. 74. Record on appeal — Supreme Court Rules — Decree or order of court below. See remarks on absence from the record of the decree of the court of original juris- diction, per Davies, J., at page 136. Re Daly; Daly v. Brown, xxxix., 122. And see Executoks and Administeatoks. 75. Evidence — Provincial laws in Canada — Judicial notice — Conflict of laws — R. S. C. (1906) 0. 145, s. 17.] — ^As an appeUate tribunal for the Dominion of Canada, the Supreme Court of Canada requires no evi- dence of the laws in force in any of the provinces or territories of Canada. It is bound to take judicial notice of the statu- tory or other laws prevailing in every pro- vince or territory in Canada, even where they may not have been proved in the courts below, or although the opinion of the judges of the Supreme Court of Can- ada may differ from the evidence adduced upon those points in the courts below. Cooper V. Cooper (13 App. Cas. 86), fol- lowed.— Note.— Cf. R. S. C. (1906) c. 145, s. 17. Logan v. Lee, xxxix., 311. And see Negligence. 76. Appeal — Special leave to proceed in formd pauperis — Dispensing with security for costs — Mode of bringing appeal — Con- struction of statute— -38 Vict. c. 11 (D.) ss. 24, 28, 31 and 79 — Right of appeal.] — The approval of security for costs is the proper mode of granting leave to the Supreme Court of Canada. Neither the Supreme Court of Canada, nor a judge thereof, has power to grant leave to bring an appeal in formd pauperis or to dispense with security for costs. — ^The powers given under section 24 of the Supreme and Exchequer Courts Act, 38 Vict. c. 11 (D.), are restricted to proceedings taken subsequently to the in- stitution of the appeal, where the statute and existing rules do not apply ; the pro- cedure may be in conformity with that fol- lowed by the Judicial Committee of the Privy Council, but the right of appeal arises solely under the statute, which can give no power respecting the exercise of prerogative rights such as may be advised by the Judicial Committee. — (Cf. Cartridge Co. v. Mc- Arthur, Cout. Dig. 124; Fraser v. Abbott, Cout. Dig. 111.) In re Fraser, Cout. Cas. 6. 77. Appeal — Jurisdiction — Expiration of time for appealing.] — Where the time limited for bringing an appeal to the Su- preme Court of Canada has expired, there is no jurisdiction in the Supreme Court of Canada or a judge thereof to approve a bond of security for the costs of appeal. — Of. The News Printing Company of Toronto V. Macrae (26 Can. S. C. R. 695) ; Cana- dian Mutual Loan & Investment Company v Lee (34 Can. S. C. R. 224.) Fournier v. Leger, Cout. Cas. 100. 78. Appeal — Jurisdiction — Title to land —Trespass — Action possessoire — Demolition of works — Matter in controversy — R S C c. 135, J. 39.]- The plaintiff's action "was for trespass against a neighbour in con- structing a roof projecting over the plain- tiff's land, for the demolition of the pro- jecting portion of the roof, and a declara- tion that the plaintiff was proprietor of the land on which the trespass had been 873 PRACTICE AND PROCEDURE. 874 committed. On motion for the approval of security for the costs of an appeal from the judgment dismissing the action : — Held, that, as the title to the land was not in issue nor future rights therein affected, and as it did not appear that the matter in controversy amounted to the sum of value of $2,000, there could be no appeal to the Supreme Court of Canada. — (Note. — Cf. The Emerald Phosphate Co. v. The Anglo-Continental Guano Works (21 Can.- S. C. R. 422) ; Delorme v. Ousson (28 Can. S'. C. R. 66) ; Parent v. The Quebec North Shore Turnpike Road Trustees (31 Can. S. C. R. 556) ; Davis v. Roy (33 Can. S. C. R. 845) ; DeKsle v. Arcand (36 S. C. R. 23). Macdonald v. Brush, Cout. Cas. 141. 79. Appeal per saltum — Expiration of time for appealing — Supreme Court Act, s. JfO.'\ — ^Leave to appeal per saltum cannot be granted after the expiration of the time limited by s. 40 of the Supreme and Ex- chequer Courts Act. Stewart v. Sculthorpe, Cout. Cas. 152. 80. Municipal corporation — Construction of sewers — Nuisance — Injunction — Dam- ages — Right of action — Practice.'] — ^An ap- plication for leave to appeal per saltum was based principally upon the grounds that the case was distinguishable from the case of Lewis v. Alexander (24 Can. S. C. R. 551) ; that the evidence shewed that the sewer in question had been constructed as a general sewer, and that the statute re- ferred to by the judge in the court below (R. S. O. 1887, c. 184, s. 489, s.-s. 47), bad been cited and commented upon in the case before the Supreme Court of Canada above referred to. The application was dismissed. City of London v. Lewis, Cout. Cas. 162. 81. Appeal per saltum — Special leave — Discretion — Review of whole case on appli- cation for leave — Vexatious proceedings — Want of merits — Expiration of time for ap- pealing.'] — ^Where it appeared that an ap- peal was utterly without merits, leave to appeal per saltum was refused, and it was declared that, in such a case, the circum- stances could not justify an order extend- ing the time for, appealing. Kilmer v. Warden, Cout. Cas. 188. 82. Appeal — Special leave — Matter in controversey.] — The judgment recovered was for $600. An appeal stood dismissed on an equal division of opinion of the judges, and on the same division, leave for an ap- peal to the Supreme Court of Canada was refused. The latter court also refused on the ground that no special circumstances had been shewn for granting special leave to appeal. Toronto Street Railway Go. v. Ro'binson, Cout. Cas. 260. 83. Extension of time for appealing — Lapse of order — Refusal to approve — Secur- ity 5o»(J.]— Judgment was pronounced on 12th April, 1902, and the time for appeal- ing was extended until 30th June, 1902. By an arrangement between the parties the application for allowance of the security bond was not heard until January, 1903, and, on 31st January, 1903, the application was refused in the court appealed from. — Meld, that upon the delivery of the judg- ment, in January, 1903, the order extending the time for appealing lapsed and, no further extension having been obtained, there was no jurisdiction in the Supreme Court of Canada to entertain an appeal brought after the expiration of the sixty days limited by section 40 of the Supreme and Exchequer Courts Act. MacLaughlin V. Lake Erie & Detroit River Ry. Co., Cout. Cas. 297. And see Appeal. 84. Special leave to appeal — Discretion — Matter in controversey.] — Motion for -spe- cial leave to appeal was refused when ap- plied for in regard to a mandatory order respecting the running of cars and exten- sions of the tramway, the questions not be- ing of a character to warrant the exercise of discretion in giving special leave. London Street Ry. Go. v. City of London, Cout. Cas. .S.O. Right of appeal — 62 'Vict. c. 11, s. 27 (Out.) — Special leave to appeal per saltum — Questions in controversy — Negligence — Damages — Amendment of pleadings — Rule 615 — Nonsuit — Verdict — Procedure.] — Since the enactment of the 27th section of chapter 11 of the statutes of Ontario, 62 Vict. (1899), a party appealing to a Divi- sional Court of the High Court, in a case where an appeal lies to the Court of Appeal for Ontario, has no right of appeal from the judgment of sucb Divisional Court to the Supreme Court of Canada, without special leave. Farquharson v. The Imperial Oil Go. (30 Can. S. O. R. 188), distinguished. — In the present case, as the findings of the jury, upon which a verdict was entered, made it apparent that there was no neces- sity for amending the statement of claim or for any additional finding of a contro- versial fact, the Divisional Court was justi- fied in permitting an amendment claiming damages as well under the Ontario Worlj- men's Compensation for Injuries Act as at common law. Dick v. Oordaneer, Cout. Cas. 326. 86. Appeal — Extension of time — Order by single judge- — Jurisdiction — Order by court appealed from — Municipal by-law.] — An ap- peal from the judgment of the Court of Appeal for Ontario, reversing the judgment of the Chancellor, which dismissed a mo- tion to quash a by-law for borrowing money for the construction of a sewer, was en- tered under an order made by one of the judges of the court appealed from, extend- ing the time for btinging the appeal. The court, suo motH, quashed the appeal with costs as of a motion to quash, for want of jurisdiction, on the ground that the order should have been made by the court, and not by a single judge. Village of Brussels V. McCrea, Cout. Cas. 336. 87. Railways — Negligence — "Fatal Ac- cidents Aot"—R. S. 0. (1897) c. 129, s. 10.] — A re-hearing was ordered, the court in- timating that the re-hearing should be upon the whole case, but drawing the attention of counsel specially to the case of Mason v. Toion of Peterborough (20 Ont. App. R. 683), and to the combined effect of the "Fatal Accidents Act," and of s. 10, c. 129, 875 PEACTICE ANDi PEOCEDUEE. 876 R. S. O. (1897) — the questions being as to whether the two actions can now be main- tained, or, if not, which one must fail. The parties made a settlement, out of court. Grand Trunk By. Co. v. Speers, Gout. C'as. 347. 88. Appeal — Special leave — Matter in controversy — Discretionary order.} — The appellants were to manufacture and sell car- riers and divide the net profits with the respondents, who were patentees of the articles. Profits were divided up to August, 1895, when appellants, claiming a breach of the conditions, treated the contract as ended, but continued to manufacture and sell. — In an action for account, tbey pleaded termina- tion of the contract ; account stated and settled ; statute of limitations, and breach by the respondents. The master, on taking the accounts, held appellants were licensees ; that the account should only go back to 1901; that it should be taken to the time of the issue of the writ, and that the con- tract was terminated by notice after the judgment on which the reference was made. — This report was affirmed by Street, J., but the Court of Appeal held that appellants were grantees and not licensees ; that the statute of limitations could not ■ be in- voked ; that the master should take the ac- count to the date of his report, and that it was beyond the scope of his functions to decide that the contract was at an end, and even if not, he was wrong, as the facts did not shew a termination. — ^A motion for special leave to appeal was refused on the ground that the questions in' controversy would not justify the exercise of such judi- cial discretion. — Note. — Subsequently an appeal de piano was heard and allowed in part without costs. (38 Can. S. C. R. 216.) Hamilton Brass Manufacturing Co. v. Barr Cash and Package Co., Cout.. Cas. 382. 89. Appeal — Findings of fact — Reversing on appeal.'i — ^Unless the appellant adduces clear proof that there was error in con- current findings on questions of fact in the courts below, the Supreme Court of Canada ought not to interfere. — Of. Whitney v. Joyce (95 L. T. 74.) DeGalindez v. Owens, Cout. Cas. 393. 90. Appeal — Postponement pending ap- peal to Privy Gouncil.l — When the appeal came on for hearing, counsel for the re- spondent suggested to the court that the city had taken an appeal from the same judgment direct to the Judicial Committee of His Majesty's Privy Council and moved for a stay of all proceedings.- — ^The court ordered that until the decision of the appeal to the Privy Council all proceedings should be stayed and suspended. Ottawa Electrio Co. v. City of Ottawa, Cout. Cas. 409. 91. Reviewing questions of fact on appeal — Findings of trial judge.] — The findings of the trial judge who heard the witnesses and had an opportunity of appreciating their demeanour ought not to be disturbed on appeal. — The judgment appealed from was reversed and the judgment at the trial re- stored. Robb V. Staford, Cout. Cas. 411. 92. Partnership — Evidence — Concurrent findings."] — The Supreme Court refused to interfere with concurrent findings as to facts by the courts below. Leighton v. Sale, Cout. Cas. 417. 93. Appeal — Expiration of time for ap- pealing — Special leave — R. 8. C. o. 1S5, s. U9—-Jurisdiction.'] — ^After the expiration of the sixty days limited for bringing an appeal there is no jurisdiction in the Su- preme Court Off Canada to grant special leave for appealing. Canadian Mutual Loan and Investment Co. v. Lee (34 Can. S. C. R. 224), and Connell v. Connell (Oam. S. C. Prac. 224), followed. C. Beck Manu- facturing Co. V, Ontario Lumber Co., Cout. Cas. 422. 94. Matter in controversy on appeal — Satisfaction of claim — Change in position of parties — Question of costs only — Quash- ing appeal.] — It appeared that the claim of the appellant, an intervenant, had been settled, while proceedings were pending, and that tlie only remaining dispute between the parties was as to costs incurred. — ^On mo- tion by the respondent, the appeal was quashed with costs. Angers v. Duggan, Cout. Cas. 425. 95. Searing of appeals — Practice in Que- bec cases — Opening by senior counsel.] — The court referred to the practice, in cases on appeal from the Province of Quebec, of al- lowing junior counsel to open the argument, senior counsel following, and that, during the winter sessions of the court, the Chief Justice speaking for the court, bad re- marked upon the inconvenience of this course. It was intimated that it was de- sirable in future that the opening should be by senior counsel on appeals from Quebec in conformity with the practice prevailing in respect to appeals from all the other provinces of the Dominion. Dumphy v. Martineau, (10th June, 1908) , Cam. Prac, 542. 96. Although appeals are by statute and rules to be beard on a case settled in the court below, and no additional material in ordinary cases will be looked at, the court is not precluded in a proper case from re- ceiving reasons for judgment which have been delivered after the appeal is launched. Dufresne v. Desforges, Cam. Prac. xiv. 97. The fact that counsel in an appeal is a candidate at an approaching Dominion election is a good ground for postponing for a reasonable time the hearing of his ap- peal. S.S. Tordinskjold v. Sorn Joint Stock Co., Cam. Prac. xv. 98. In SaUfase City Ry. Co. v. The Queen, Cout. Dig. 1118, the court refused to hear a member of the Bar of the State of New York who desired to appear on be- half of the appellants. — In the Steamship Calvin Austin v. Lovitt, on February 27th, 1905, counsel for the respondent called the attention of the court to the fact that a member of the Massachusetts Bar had been beard in this appeal in .the Admiralty Court below, and requested that he be heard by the Supreme Court. Counsel for the appellant not objecting, the court granted the application, and counsel was called 877 PKACTICE AND PKOCEDUEE. 878 within the bar, and took part in the argu- ment of the appeal on behalf of the respond- ent, Cam. Prac. 68. 99. Admissions of counsel.'] — At the open- ing of his argument, counsel for appellant pointed out that the trial judge had in his reasons for judgment stated that appellant's counsel had made an admission that no proper notice of dishonour had been given as to certain notes in issue. This state- ment did not appear in the record nor in the stenographer's notes, and was contro- verted by the appellant's counsel. Counsel then proceeding to argue against his being bound under the circumstances by the judge's reasons, the court stopped him, stating that as there was nothing on the record estab- lishing the admission, and no evidence of any entry in the judge's minute book ap- pearing, the appellant could not be held bound by the statement in the judge's rea- sons delivered some time after the con- clusion of the trial, as it was quite possible he had misunderstood the position taken by counsel. Fleming v. McLeod, Supreme Court, May lOtb, 1907, Cam. Prac. 69. 100. In this case an application was made on consent for leave to appeal from the judgment of the Court of Appeal for Ontario in a reference by the Lieutenant- Governor in Council. — The motion was re- fused, the court holding that it had no jur- isdiction, and was bound by its decision in the Union Colliery Co. v. The Attorney- General of British Columbia. Subsequently an appeal was taken directly to the Judicial Committee of the Privy Council (1907) A. C. 69. — For ithe jurisdiction of the Supreme Court in disputed matters of jur- isdiction between the Dominion of . Canada and any province, vide notes to s. 67. In re Teachers in Roman Catholic Schools, Feb- ruary 20th, 1906, Cam. Prac. 74. 101. This appeal was quashed on the ground that since the judgment against the appellant in the Superior Court, his inter- est in the lands in question under a deed of sale d rimire had ceased by payment and by a deed of retrocession, executed by him to the party entitled to reclaim. It was further held that, following Schlo- mann v. Dowker, 30 Can. S. C. R. 323, a motion to quash was a convenient way of disposing of the appeal before further costs had been incurred. Angers v. Duggan, February 19th, 1907, Cam. Prac. 89. 102. In this case it was held that it was the duty of the registrar not to allow a bond as security for costs, however unimpeach- able in form, if he was of the opinion there was no jurisdiction in the court to hear the appeal. — ^By the term "proper security," security with proper sureties is to be under- stood. Powell V. Washhurn, 2 Moo. P. C. C. 199, but if security for costs be taken by the court appealed from upon notice to the re- spondent and without objection upon his part, it cannot afterwards be questioned by him, unless new circumstances arise, and not even in that ease, if he does not object on the first opportunity. lUd. — It is a com- mon practice now to accept as security the bond of a guarantee company (Annual Prac- tice, 1912, p. 827). In the Supreme Court only companies licensed by the Government of Canada are accepted unless by consent of parties. — It has not been the practice in the case of a bond furnished by a security company to require that the appellant should be a party. McLaughlin v. Lake Erie & Detroit River Ry. Co., Cout. S. C. Cas. 297; Cam; Prac. 448. 103. The provisions of the statute must lie strictly complied with.] — In this case the appellants, on consent of the respondents, had a bond for $250 allowed by a judge of the court below as security for their appeal to the Supreme Court. On the case reach- ing the registrar he referred the matter to the Chief Justice to determine whether or not such a bond was a suflScient compliance with section 46, now section 75. The bond was disallowed, the Chief Justice in his judg- ment, saying: — "Though it would seem that as a general rule the giving of security is an enactment in favour of the adverse party, and that consequently the adverse party may waive it expressly or impliedly, yet, under the Supreme Court Act, that is not so. Under sections 40, 43 and 46 (now sections 69, 72 and 75 respectively), the case is taken out of the jurisdiction of the Pro- vincial Court only by the approval of the security. It is only by that Act that the Supreme Court acquires jurisdiction. That is why rule 6 requires that the case contain a certificate that the security has been given. Fraser v. Albott, Cass. Dig. 695; In re Cohan, 21 Can. S. C. R. 100. Whitman v. The Union Bank, 16 Can. S. C. R. 410, might be read as opposed to that view. But the statute is, to my mind, clear, and the clerk of the Provincial Court has no au- thority whatever, as a general rule, to cer- tify a case (rule 1) when no security has been given. Our registrar should, therefore, refuse to receive such a case. The security, of course, must be as required by the stat- ute." — Subsequently, a case was certified to the registrar from the CJourt of Appeal for Ontario in which the Grand Trunk Ry. Co. were appellants, and the security allowed by a judge of the Court of Appeal was the undertaking of the appellant's solicitor. On the strength of the decision in Holsten v. Cockburn, the registrar refused to receive the case until the security required by the statute had been given. Holsten v. Cock- burn, 1904, Cam. Prac. 449. 104. Stare decisis.] — The subject of stare decisis is exhaustively discussed by Mr. Jus- tice Anglin in Stuart v. Bank of Montreal, 41 Can. S. C. R. 516 at page 541 e< seg., where after reviewing all the Canadian and English authorities applies the principle of stare decisis, and holds himself bound to follow a previous decision of the Supreme Court. — Vide also Shawinigan v. Shawini- gan, 43 Can. S. C. R. 650, Cam. Prac. 8. 105. Criminal law — Refusal of reserved case — Appeal to Supreme Court of Canada — Conviction in Yukon Territory — Admis- sion of evidence — Procedure at trial. Labelle V. The King, Cout. Cas. 282. 106. Concurrent findings of lov:er courts — Duty of second appellate court, sxxiv., 145. See Appeal. 879 PEACTICE AND PKOCEDUEE. 880 107. Discretionary order — Costs — Exem- plary damages-^Interference iy court of ap- peal, xxxiv., 153. See Appeal. 108. Appeal — Jurisdiction — Amount in controversy — Future rights, xxxiv., 274. See Appeal.. 109. Right of action — Confession of judg- ment — Evidence — Admissions — Estoppel by record — Concurrent findings of fact — Practice on appeal, xxxiv., 495. See Evidence. 110. Opposition afin de charge — Order for security — Interlocutory judgment — Res judi- cata — Suisequent final order — Revision of merits on appeal — Practice, xxxv., 1. See Appeal; Costs. 111. Judicial notice — ■ Evidence - tions taken on appeal, xxxv., 14. See Peincipal and Agent. - Oljec- 112. Appeal — Jurisdiction — Amount in controversy — Conditional renunciation — Re- servations — Costs on appeal in court ieloio — Costs of enquSte — Ifuisance — Statutory powers — ilegligence — Legal maxim, xxxv., 255. See Appeal; Damages. 113. Pleading— B. C. Rule 168 — New points raised on appeal — Condition prece- dent — Construction of statute — Mineral claim — Expropriation — Watercourses^ ■ — Trespass — Damages — Waiver — Injunction, xxxv., 309. See Peactice, 114. Special leave to appeal — Terms im- ~; XXXV., 478. See Appeal. 115. Sheriff's sale of lands — Opposition afin de charge — Discretionary order — De- fault in furnishing security — Res judicata — Estoppel by record — Frivolous and vexatious proceedings — Quashing appeal — Jurisdiction of Supreme Court of Canada — R. S. C. o. 135, ss. 27, 59 — Arts. 651, 726 G. P. Q., xxxvi., 613. See Opposition. 116. Contradictory evidence — Assess- ment of damages — Reversal on appeal, xxxvi., 152. See Peactice. 117. Declinatory exception — Interlocu- tory judgment — Appeal — Jurisdiction ■ — Review of judgment on exception, xxxvii., 535. See Appeal. 118. Controverted election — Trial of peti- tion — Evidence — Corrupt acts at former election — Agency — System of corruption, xxxvii., 604. See Peactice. 119. Appeals from Ontario — Jurisdiction — New trial — Discretionary order, xxxvii., 672. See Appeal. 120. Account — Statute of limitations — Agent or partners — Reference, xxxviii., 216. See Peactice. 121. Crown case reserved — Reserved ques- tions — Dissent from affirmance of conviction — Appeal— Jurisdiction, xxxviii., 284. See Peactice. 122. Vacating judgment — Appeal — Juris- diction — Matter in controversy — Tierce op- position — Arts. 1185-11S8 C. P. Q.—R. S. G. (1886) c. 135, s. 29, xxxviii., 236. See Opposition. 123. Appeal — Railway Act — -Expropria- tion — Appeal from award — Jurisdiction — Choice of forum — Curia designata, xxxviii., 511. See Appeal. 124. Mechanics' lien — Completion of con- tract — Time for filing claim — Construction of statute— R. S. M. (1902) c. 110, ss. 20, 36 — Right of appeal, xxxix., 258. See Lien. 125. Landlord and tenant — Negligence — Master and servant — Acts in course of em- ployment — Alterations in plumbing — Dam- age by steam, etc. — Responsibility of con- tractors — Control of premises — C ross-appeal between respondents, xxxix., 265. ' SeeLANDOBD and Tenant. 126. Charge by judge — Findings of jury — New evidence on appeal — New trial, xxxix., 390. See Peactice. 127. Appeal — Demurrer — Final judgment — Jurisdiction, xl., 139. See Judgment. 128. Alternative relief — New trial granted — Final judgment — Appeal, xl., 270. 129. Appeal — Criminal law ■ — Reserved case — Application for "during trial" — Criminal Code, s. lOH (3) — Construction of statute, xl., 272. See Oeiminal Law. 130. Appeal — Delay in approval of secur- ity — Jurisdiction — Extension of time — Stay of execution, xl., 455. See Appeal. 131. Mandamus — Driving timber — Order to fix tolls — Past user of stream — Appeal — R. S. 0. (1897) c. H2, s. 13, xl., 523. See Mandamus. 132. Life insurance — Deduction from dam- ages — Appeal — Equal division of opinion Costs, Cam. Gas. 228. See Negligence. 133. New trial or reduction of verdict Cam. Cas. 282. See New Trial. 134. Appeal — Jurisdiction — Discretion- ary order, Cout. Cas. 119. See Appeal. 881 PRACTICE AND PEOCEDURE. 882 135. Appeal per saltum — Jurisdiction — Trespass — Boundary — Mines and minerals, Gout. Cas. 281. See Mines and Mining. 136. Controverted election — Abatement of appeal — Dissolution of Parliament — Return of deposit, Gout. Cas. 314. 137. Appeal — Jurisdiction — Amount in controversy — Adding interest to judgment — Construction of statute, Gout. Cas. 318. See Appeal. 138. "Winding-up Act" — Leave to appeal — Discretion — Construction of statute, Cout. Cas. 341. See Appeal. 139. Discretionary order — Amendment of pleadings — Final judgment. Gout. Cas. 386. 140. Assessment of damages — Concurrent findings — Practice in appellate court, Gout. Cas. 409. 141. Appeal per saltum — Jurisdiction. Armour v. Town of Onondaga, xlii., 218. See Appeal. 142. Appeal — Special leave — "Supreme Court Act," B. 8. C. 1906, e. 139, s. 37c— Interests involved — Construction of statute — "Alberta Local Improvement Act" — As- sessment and taxation — Constitutional law, xlv., 170. See Statute. 143. Appeal — Jurisdiction — Matter in controversy — Damming watercourse — Flood- ing of lands — -Servitude — Damages — Objec- tion to jurisdiction^— Costs, xlv., 292. See Appeal. 144. Appeal — Jurisdiction — Provincial tribunal — Consent — • Estoppel — Assess- ment. Township of Cornwall v. Ottawa d N. Y. B. B., Ui., 466. See Assessment and Taxes. 145. Title to land — Vente A r4merS — Se- curity for loan — Time for redemption — Pro- mise of re-sale — Condition — -Equitable relief — Pleading — Waiver — New points on appeal —Practice— Arts. 1549, 1550 C. C, liii., 204. See Title to Land. 146. AppeaJ — Title to land — Fraudulent conveyance — Statute of Elizabeth, liii., 145. See JuEisDicTiON ; Appeal. 147. Appeal — Juritdiction — Winding-up proceedings — Time for appealing — Amount in controversy — Construction of statute - — "Supreme Court Act," B. 8. C. 1906, c. 139, ss. 46, 69, 71 — "Winding-up Act," B. 8. C. 1906, c. 144, ss. 104, 106— Affirming juris- diction — Motion in court — Discretionary or- der by judge, liii., 128. See Appeal. 148. Appeal from Court of Beview — Jur- isdiction — Amount in controversy — Addi- tion of costs of exhibits, liii., 390. See Appeal. 149. Appeal — Jurisdiction — Court of Re- view — Arts. 68 and 69 C.P.Q. — "Supreme Court Act," R. 8. C. 1906, c. 139, s. 40 liii., 353. See appeal. 150. Appeal — Jurisdiction — Action in county court — Concurrent jurisdiction vnth superior court — Construction of statute — B. 8. C. 1906, u. 139, ss. 37b, 70, "Supreme Court Act"—B. 8. B. G. 1911, c. 51, "Court of Appeal Act" — B. 8. B. C. 1911, c. 53, "County Courts Act" — Motion for new trial — Be-hearing on appeal, liv., 26. See Appeal. 6. Costs. 151. Appeal — Equal division of opinion — Dismissal loithout costs.'] — ^Upon an equal division of opinion among the judges, the appeal stood dismissed without costs. CotS V. The James Richardson Co., xxxviii., 41. And see Appeal. 152. Plaintiff's action was dismissed by the trial judge. On appeal the Supreme Court of Nova Scotia, consisting of four judges, was equally divided and accordingly the appeal was dismissed without costs. The defendant appealed to the Supreme Court of Canada, when the appeal was dismissed with costs. On settling the minutes of judgment, after bringing the point before the Court, the registrar provided that the respondent should have his costs as well in the Supreme Court of Nova Scotia as in the Supreme Court of Canada. Ross v. Can- non, Feby. 19th, 1907. Cam. Prac. 296. 153. Costs out of estate.] — Upon applica- tion of counsel for unsuccessful appellant, counsel appearing for respondent and also for executors not parties to the appeal and not objecting, it is ordered that the costs in the Supreme Court be paid out of the estate. Marks v. Marks, June 16th, 1908. Cam. Prae. 296. 154. In this case the respondent promptly moved to quash, but the Court directed that the motion should stand to be heard and disposed of when the appeal came on to be argued on the merits. The merits were argued by the appellants for one day, and respondent's counsel raised the question of jurisdiction in opening his argument on the merits. The Court quashed the appeal with- out hearing respondent on merits, and re- served judgment as to costs, and subse- quently ordered that the respondent shouU have his costs of the appeal and not merely the costs of motion. G-enereau v. Bruneaii, Dec. 9th, 1910. Cam. Prac. 294. 155. Election case — Counsel fee. Mont- morencij Election Case, Gout. Cas. 16. 156. Discretionary order — Costs — Exem- plary damages — Interference by court of ap- peal, xxxiv., 153. See Appeal. 883 PRACTICE AND PEOCEDUKE. 884 157. Varying minutes of judgment — Re- fusal of costs, xxxiv., 502. See Practice. 158. Security for costs' — Waiver — Con- sent, XXXV., 187. See Practice. 159. Withdrawal of case from jury — New trial — Costs, xxxix., 202. See Practice. 160. Measure of damages — Loss of prim- ary and secondary profits — Discretionary order as to costs, xxxix., 575. jSee Contract. 161. Appeal — Equal division of opinion — Costs, Cam. Cas. 228. See Negligence. 162. Appeal — Jurisdiction — Demurrer — Final judgment, Cout. Cas. 11. See Appeal. 163. Taxation of costs — Stay of execu- tion — Setting off costs in court below — Amending minutes of judgment, Cout. Cas. 19. See Practice. 164. Appeal — Equal division of opinion ■ — Dismissal with costs, Cout. Cas. 271. See Title to Land. 105. Mines and minerals — Trespass ■ — Boundary — Hillside claim — Jurisdiction — Appeal per saltum, Cout. Cas. 281. See Mines and Mining. 166. Non-prosecution of motion — Dismis- sal with costs, Cout. Cas. 323. See Practice. 167. Equal division of opinion — Appeal dismissed with costs, Cout. Cas. 284. See Negligence. 168. Operation of tramway ■ — Negligence — Dangerous way — Removal of snow and ice — Right of way — Equal division of opin- ion — Costs, Gout. Cas. 309. See Negligence. 169. Judgment on appeal — Equal division in opinion — Costs. Maclaren v. Attorney- General for Quebec, Cam. Prac. 548. 7. Criminal Appeals. 170. Criminal Code — 6 <£ 7 Edw. VII. c. 8 — Procedure — Alberta and Saskatchewan — Indictable offence — Preliminary inquiry — Preferring charge — ■ Consent of Attorney- General — Powers of deputy — "Lord's Day Act," s. n. In re Criminal Code, xlili., 434. See Criminal Law. 171. Criminal law — Indictment for mur- der — Trial — Evidence — Criminal intent — Provocation — "Heat of passion" — Charge to jury — Misdirection — Reducing charge to manslaughter — New trial — "Substantial wrong" ' — Criminal Code, ss. 261, 1019 — Appeal — Questions to be reviewed, xlvii., 1. See Criminal Law. 8. Damages. 172. Revendication — Statement of claim, — Pleadings- — Procedure — Arts. 110 and 339 C. P. Q. — Evidence — Judgment secun- dum allegata et probata — Ultra petita — ■ Surprise.] — In an action for revendication of books, documents and records retained by a fire insurance agent after his dismissal and for damages in default of delivery there- of, several policy copy-books, which could not be found at the time of the seizure, were delivered up in a mutilated condition by the defendant during the pendency of the action, the defendant being unaware of such mu- tilation. Some time afterwards the an- swers to defendant's pleas were filed and contained no reference to the mutilated and incomplete condition in which these books were returned. At the trial plaintiffs were allowed to give evidence as to the costs of replacing these books in proper condition, although defendant objected to the adduc- tion of such proof,, and the trial judge as- sessed damages in this respect at $200, and at $2,000 in respect of certain mutilated plans, at the same time declaring the re- vendication vaUd, etc. On appeal by the plaintiffs from the judgment of the Court of King's Bench,, reversing the trial court judgment in regard to the pecuniary con- demnation : — Held, affirming the judgment appealed from, that, as the defendant had been surprised, in so far as the issues affect- ing the policy copy-books were concerned, he was entitled to relief as to the item of $200 for damages in respect thereof. With regard to the item of $2,000 damages, how- ever, as the defendant could not have been taken by surprise, he himself having muti- lated the plans, the Supreme Court of Can- ada! reversed the judgment appealed from and restored the trial court judgment as to that item of the damages assessed. Noncich Union Fire Insurance Co. v. Kavanagh, xxxvi., 7. 173. New trial — Contradictory evidence — Wilful trespass — Rule in assessing damages — Adding party — Reversal on appeal.] — In an action for damages for entry upon a placer mining claim and removing valuable gold bearing gravel and dirt, the trial judge found the defendants guilty of gross care- lessness in their work, held that they should be accounted wilful trespassers, and referred the case to the clerk of the court to assess the damages. The referee adopted the se- verer rule applicable in cases of fraud in assessing the damages. The Territorial Court m banco reversed the trial judge in his findings of facts upon the evidence. — Held, reversing the judgment appealed from, that the trial judge's findings should be sus- tained with a slight variation, but that the referee had erred in adopting the severer rule against the defendant in assessing the damages, and that his report should be amended in view of such error. — Semble- that the record and pleadings should be 8&5 PEACTICE AND PROCEDURE. 886 amended by adding the plaintifE's partner as co-plaintifE. — Held, per Taschereau, C.J., dissenting, that although not convinced that there was error in the judgment of the trial judge which the court in banco re- versed, while at the same time it did not appear that there was error in the judg- ment in ianco, yet the latter judgment should stand, as the court in Borneo should not be reversed unless the Supreme Court, on the appeal, be clearly satisfied that it was wrong. (Leave to appeal to Privy Council refused, 4th Aug., 1905) . Kirkpatrick v. McNamee, xxxvi., 152. 174. Assessment of damages — Concur- rent findings — Practice on appeal.^ — Where the judge at the trial had heard and seen the witnesses and had, on proper principles, as- sessed damages according to his apprecia- tion of the evidence, his decision being adopted by the court in banco, the court refused to interfere on appeal. Wood v. LeManc, Cout. Cas. 409. 175. Exemplary damages — Discretionary order — Costs — Interference by court of appeal, xxxiv., 153. See Appeal. 176. Pleading — Cross-demand — Compensa- tions-Arts. 3, 203, 215, 211 C. P. Q. — Con- struction of contract — Liquidated damages —Penal clause—Arts. 1076, 1181, 1188 C. C. — Estoppel — Waiver, xxxvi., 347. See Pleading. 177. Assessment of damages — Funeral ex- penses, xxxviii., 327. See Negligence. 178. Tort — Right of action — Withdravjal of case from jury — T. acknowledging receipt of the funds "with the understanding that the navigation of the river is not to be prevented. — Held, revers- ing the judgment appealed from (13 Ex. C. R. 116) , Girouard and Idington, J J., dis- , senting, that the memorandum was too vague to serve as an interruptive acknow- ledgment sufficient to defeat the title claimed by the company. Cap Rouge Pier, Wharf and Dock Go. v. Duchesnay, xliv., 130. And see Limitation of Actions. 3. Fire insurance — Contract of re-insur- ance — Trade custom — Conditions of con- tract — '"Rider" to policy — Limitations of actions — Commencement of prescription — Art. 22S5 G. C, xxxv., 208. See Insurance, Fiee. 4. Municipal corporation — Montreal city charter — Construction of statute — "Current year" — Assessment and taxes — Local im- provements — Special fax, xxxix., 151. See Municipal Cokpoeation. 5. Title to land — Easement appurtenant — Vser of lane — Agreement for right of way — Construction of contract — Practice, Cout. Cas. 352. See Easement. And see Limitations op Actions. 6. Action in wrong jurisdiction — Transfer to court of competent jurisdiction — Expira- tion of time — Pleading prescription after transfer of action. Connolly v. Chrenier, xlii., 242. See Ships and Shipping. See Limitations of Actions, xliii., 637. 7. Easement — Trespass — Public way ■ — Dedication — Usei Estoppel — "Law and Transfer of Property Act," R. 8. O. 1897, c. 119, xlviii., 57. See Highway. PRESSURE. Contract — Security for deht — Promissory note — JSusland and wife — Parent and child, XXXV., 393. See Conteact. PRESUMPTION. Title to land — Injunction — Bounda/ry — Riparian rights. City of Bull v. Soott, Cout. Cas. 264. And see Evidence. PRINOIPAL AND AGENT. 1. Liability foe Conteact by Agent, 1-5. 2. LiABiLiTT foe Acts of Agent, 6-17. 3. Rights and Liabilities Between Pein- crPAL AND Agent, 18-38. 4. Othee Oases, 39-49. 1. Liability poe Conteact by Agent. 1. Broker selling on grain exchange — Contract in broker's name— Liability of pririr cipal — "Futures" — "Options" — "Margins" — Board rules — Indemnity.'i — On 14lth August, 1907, the defendant, who resided in the State of Nebraska, wrote the follow- ing letter to the plaintiffs, grain dealers at Winnipeg, Man. : "Yours of recent date enclosing market report rec'd. I shall be North in about four weeks to look after the new crop and, if you can sell No. 2 oats for 37c. or better, in store Port Wil- liam, you had better sell 4,000 bus. for me. and I will be up at Snowflake then so I can look after the loading of them, and I will send the old oats then." The _ plaintiffs, who were also brokers on the Winnipeg Grrain Exchange, sold the oats at 38% cents on the "Board," without disclosing the name of their principal, for October delivery, be- coming personally liable for the perform- ance of the contract according to the rules of the Exchange. Upon defendant refusing to deliver the oats, the plaintiffs purchased the quantity of oats so sold at an advance in price in order to make the delivery, and brought the action to recover the amount of their loss thus sustained. — Held, revers- ing the judgment appealed from (18 Man. R. Ill), that the authority so given did not authorize the plaintiffs to make a sale under the Grain Exchange Rules binding upon their principal ; that no contract bind- ing on the principal outside of these rules had been entered into, and consequently, that he was not liable to indemnify them for any loss sustained by reason of their con- tract. Butler V. Murphy, xli., 618. 2. Joint stock compa/ny — Subscription for shares — Authority of agent — Conditional agreement."] — ^S. signed a subscription for shares in a company to be formed and a promissory note for the first payment, both of which documents he delivered to the pro- moter of the company to which they were 921 PEINCIPAL AND AGENT. 922 transferred after incorporation. In an ac- tion for payment of calls S. swore that the stock was to be given to him in. part pay- ment for the good wUl of his business which the company was to take over. The promoter testified that the shares subscribed for were to be an addition to those to be received for the goodwill. — Held, that, though S. could, before incorporation, con- stitute the promoter his agent to procure the allotment of shares for him and give his note in payment, yet the possession by the promoter did not relieve the company from the duty of inquiring into the extent of his authority and, whichever of the two statements at the trial was troie, the pro- moter could not bind S. by an unconditional application. Ottawa Dairy Co. v. Sorley, xxxiv., 508. 3. Agreement for sale of land — Principal and agent — Estoppel — "Land Commissioner" — Specific performance.'] — The plaintifEs, as assignees, claimed specific performance of an alleged agreement for the sale of lands based upon the following letter: "Pernie, B.C., June 5th, 1900.— D. V. Mott, Esq., Fernie, B.C. : — Re sale to you of mill site. — Dear Sir: — The Crow's Nest Pass Coal Company hereby agree to sell to you a piece of land at or near Hosmer Station, on the Crow's Nest line, to contain at least one hundred acres of land, at the price of $5.00 per acre ; payable as^ollows : When title issued to purchaser, title to be given as soon as the company is in a position to do so. Purchaser to have possession at once. The land to be as near as possible as shewn on the annexed sketch. Yours truly, W. Pernie, Land Commissioner." — The lands claimed were not those shewn on the sketch plan, but other lands alleged to have been substituted therefor by verbal agreement with another employee of the defendant com- pany, at the time of survey. — Held, affirm- ing the judgment appealed from (12 B. C. Rep. 433), but on different grounds, that specific performance could not be decreed in the absence of any proof of authority of the agent to sell the lands of the defendant company, and that the mere fact of investing their employee with the title of "Land Com- missioner" did not estop the defendants from denying his power to sell la.nds. Blk Lumber Co. v. Crow's Nest Pass Coal Co., xxxix., 169. 4. Company — Powers — Sale of iusinesa premises — Seal — Agreement signed ty officer, li., 374. See Company. 5. Fire insuramce — Bawdy house — Im- moral contract — Legal maxim — "Ex turpi causd non oritur actio" — Cancellation of policy — Statutory condition — Notice to in- sured — Return of premium, lii., 294. See PiBE Insubance. 2. LlABUlTT FOE ACTS OF AOENT. 6. Sale of land — Authority to make con- tract — Specific performance.] — The defend- ant gave a real estate agent the exclusive right, within a stipulated time, to sell, on commission, a lot of land for $4,270 (the price being ealculatid at the rate of $40 per acre on its supposed area), an instal- ment of $1,000 to be paid in cash and the balance, secured by mortgage, payable in four annual instalments. The agent en- tered Into a contract for sale of the lot to the plaintiff at $40 per acre, $50 being de- posited on account of the price, the balance of the cash to be paid "on acceptance of title," the remainder of the purchase money payable in four consecutive yearly instal- ments and with the privilege of "paying off the mortgage at any time." This con- tract was in the form of a receipt for the deposit and signed by the broker as agent for the defendant. — Held, affirming the judg- ment appealed from (15 Man. Rep. 205), that the agent had not the clear and express authority necessary to confer the power of entering into a contract for sale binding upon his principal. — Held, further, that the term allowing the privilege of paying off the mortgage at any time was not authorized and could not be enforced against the de- fendant. Gilmour v. Simon, xxxvll., 422. 7. Partnership— Partnership funds — Third party — Banks and banking — Negotiable in- strument — Notice — Inquiry.] — R. a member of the firm of R. M. & C, engaged on a contract for railway construction in Que- bec, shortly before its completion went to Ontario, learlng his partners to finish tht work, collect any balance due, pay the lia- bilities and divide the balance among them. M. and C. finished the work and received $56,000 and over, went to Toronto and formed a new partnership of which R. was not a member. Having undertaken another contract in North Ontario, tbey arranged with the head office of the Imperial Bank to open an account with Its branch at New Liskeard and the cheque payable to R. M. & C. was cashed at the branch in Toronto, and by instructions to the New Liskeard branch was placed to the credit of the new firm then, and the whole sum was eventually drawn out by the latter firm. R., later, brought an action against M. and C. for winding up the affairs of their co-partner- ship and, pending that action took another against M. and C. and the bank, claiming that the latter should pay the amount of the cheque with interest into court subject to further order. — Held, per Pitzpatrick, C.J. and Davles, J., affirming the judgment of the Court of Appeal (19 Ont. L. R. 584), Idington and Anglin, JJ., dissenting, that M. and O. had acted within their authority from R. by obtaining cash for the Cheque ; that there was nothing to shew that they had misapplied the proceeds or intended to do so by their dealing with the cheque ; that In any case there was no notice to the bank of any intention to misapply the funds and nothing to put them on inquiry ; and that the action against the bank must fail. — Per Duff, J. — The evidence establishes that M. and C. had authority to convert the cheque Into an instrument transferable by delivery only, and that it was acquired by the bank in good faith In the ordinary course of business. The bank, therefore, obtained a good title to the cheque and its proceeds as against the appellant.. Ross v. Chandler, xlv., 127. 923 PEIKCIPAL AND AGENT. 934 8. Promissory note — Signature to Wank note — Authority to use — Condition — Bond fide holder — Bills of Exchange Act, ss. 31 and 32.] — W., residing at Newmarket, owned property in Port Arthur and signed some promissory note forms which he sent to an agent at the latter place to be used under certain circumstances for making re- pairs to sucb property. The agent filled in one of the blank notes and used it for his own purposes. In an action by the holder W. swore, and the trial judge found as a fact, that the notes were not to be used until he had been notified and authorized their use. He also found that the circum- stances attending the discount of the note by the agent were such as to put the bolder on inquiry as to the latter's authority. The first finding was afiirmed by the Court of Appeal. — Held, affirming the judgment of the Court of Appeal (24 Ont. L. R. 122), Fitzpatrick, O.J., duHtante, that ss. 31 and 32 of the "Bills of Exchange Act" did not apply and the holder could not recover. — Held, per Davies and Anglin, JJ. — The find- ing of the trial judge that the circumstances never arose upon which the agent had auth- ority to use the note was not so clearly wrong as to justify a second appellate court in setting it aside. — Held, per Idington, J. — The finding of the trial judge that the holder was put on inquii-y as to the agent's auth- ority was justified by the evidence and bars the right ■ to recover. — Held, per Duff, J. — The evidence establishes that the agent had no authority to use the note. Ray v. WiUson, xlv., 401. 9. Zdfe insurance — Endowment poUcy ■ — Surrender — Cash value — Action for rescis- sion — Representation iy agent — Inducement to insure.] — The life of S. was insured by a twenty-year endowment policy which pro- vided that at the end of the term he could exercise one of three options including that of surrender of the policy on receipt of a sum to be ascertained in a specified man- ner. About ten months before the policy expired he wrote to the company asking for the amount payable on surrender which was promptly furnished, and more than a year later he brought action for a larger cash payment, and in the alternative for rescission of the contract for insurance and return of the premium paid with inter- est, alleging that when he applied for the insurance be was informed by the agent of the company that the cash value of the policies surrendered "would be the larger amount claimed. The trial judge directed rescission and return of the premiums as prayed. His judgment was reversed by the Court of Appeal. — Held, affirming the judg- ment of the Court of Appeal (23 Ont. L. R. 559) that as S. did not swear nor the evi- dence he adduced establish that be was In- duced to enter into the contract by the re- presentations of the agent as to the sum payable on surrender, and it might fairly be inferred that had he been given the true figures he would still have taken the policy, his action must fail. Shaw v. Mutual Life Ins. Co., xlvi., 606. 10. Fire insurance — Removal of goods — — Consent — Binder — Authority of agent.'\ — K. Bros. & Co., through the agents in New York of the respondent company, obtained insurance on a stock of tobacco in a cer- tain building in Quincy, Flo., and after- wards obtained the consent of the company to its removal to another building. Later, again, they wished to return it to the orig- inal location, and an insurance firm in New York was instructed to procure the neces- sary consent. This firm, on January 14th, 1909, prepared a "binder," a temporary document intended to license the removal until formally authorized by the company, and took it to the firm which had been agents of respondents when the policy is- sued, but had then ceased to be such, where it was initialed by one of their clerks on his own responsibility entirely. On March 19th, 1909, the stock was destroyed by fire in the original location, and shortly after a formal consent to its removal back was indorsed on the policy, the respondents then not knowing of the loss. In an action to recover the insurance : — Held, affirming the judgment of the Court of Appeal (25 Ont. li. R. 534) that the "binder" was is- sued without authority ; that even if the insurance firm by whose clerk it was in- itialed had been respondents' agents at the time they had, under the terms of the policy, no authority to execute it, and auth- ority would not be presumed in favour of the insured as it might be in case of an original application for a policy ; and that it was not ratified by the indorsement on the policy as the coApany could not ratify after the loss. Kline Bros, d Co. v. Dominion Fire Ins. Co., xlvii., 252. 11. Vendor and purchaser — Agreement for sale — Agent to procure purchaser — Agent joining in purchase — Non-dis- closure to co-purchaser — Payment of com- mission — Rescission of contract.]— 3. was owner of mining land and offered S. a com- mission of ten per cent, for finding a pur- chaser thereof. H. afterwards wrote to S. stating that the mine was very rich, and urging him to induce some of his friends to join in a syndicate or company to purchase and work it. S., without disclosing his agency, induced W. to take up the matter and they agreed to join in the purchase and divide the profits. A contract was entered into with H. and W. paid $20,000 on account of the purchase price on which S. was paid his commission. Default having been made in the further payments H. brought action claiming possession of the property and the right to retain the amount paid. W. counter-claimed for rescission of the contract and return of the money paid with interest, and on the trial swore that he knew nothing of S.'s agency for several months after the contract was signed. — Held, affirming the judgment of the Appellate Divi- sion (29 Ont. li. R. 6), Fitzpatrick, O.J., dissenting, that it was the duty of H., on becoming aware that S. was a co-purchaser with W., to satisfy himself that the latter was aware of the agency of S. ; and that W. was entitled to the relief asked by his counterclaim. — Held, per Davies and Anglin, JJ. (Duff, J., contra), that S. by conceal- ing from W. the fact that he was to re- ceive a commission from the vendor was guilty of a fraud for which H. was respon- sible as agent. (Leave to appeal to Privy Council refused, 23rd July, 1914.) Hitch- cock V. Sykes, xlix., 408. 925 PEINCIPAL AND AGENT. 926 12. Estoppel — Receipt delivered iefore payment.'] — The local agent of the railway company received the personal cheque of the defendants' agent in settlement of freight diarges due by the defendants and thereupon receipted the freight bills. By means of these receipted biUs the defendants' agent was enabled to obtain the amount of the freight charges from his employers and ab- sconded, leaving no funds to meet his cheque which was dishonoured. In an action for the recovery of the amount of the freight charges. — Held, reversing the judgment ap- pealed from (8 Alta. L. R. 363), Duff and Brodeur, JJ., dissenting, that the delivery of the receipts in advance of payment af- forded means of inducing the defendants to pay over the amount represented by them to their agent and, consequently, the plain- tiffs were estopped from denying actual re- ceipt of payment of the freight charges. — • Per Duff, J., dissenting. — In the circum- stances disclosed by the evidence in the case the principle of estoppel could not be applied. Gentles v. Canadian Pacific Rail- way Go. (14 Ont. L. R. 286), distinguished. Continental Oil Go. v. Canadian Pacific Railway Co., lii., 605. 13. Agreement for sale of land — Princi- pal's duty and interest — Fiduciary relation- ship — Specific; performance, xli., 445. See Specitio Peefobmance. 14. Vendor and purchaser — Sale of land — Condition — Approval of assignments — Equit- able estate or interest — ■ Priority between transferees — Fraudulent and criminal prac- tices — Notice of previous transfer — Implied knowledge. MacLeod T. Sawyer-Massey Co., xlvi., 622. 15. Sale of land — Commission. Langley v. Rowlands, xlvi., 626. 16. Fire insurance — Blank application — General agent — Misrepresentation — Knowl- edge of company — Over-valuation — "Dwell- ing-house" — "Lodging-house." Mahomed v. Anchor Fire, etc., xlviii., 546. See Insurance, Fike. 17. Fire insurance — Statutory condition — R. S. Q., 1909, arts. nOSi, 7035, 1036— Notice — Conditions of application — Conditions en- dorsed on policy — Keeping and storing coal oil — Agent's knowledge — Waiver— Adjust- ment of claim — Offer of settlement by ad- juster — Estoppel— Transaction, liii., 296. See INSUBANCE. 3. Bights and Liabilities Between Pbin- ciPAL AND Agent. 18. Agent's commission — Breach of duty — Secret profit.'] — D. represented to the manager of a land corporation that he could obtain a purchaser for a block of its land, and was given the right to do so up to a fixed date. He negotiated with a purchaser who was anxious to buy, but wanted time to arrange for funds. D. gave him time for which the purchaser agreed to pay $500. The sale was carried out, and D. sued for his commission, not having then received the )(>000. — Sefd, reversing the judgment ap- pealed from (14 Man. L. R. 233), that the consent of D. to accept the $500 was a breach of his duty as agent for the corpora- tion which disentitled him from recovering the commission. Manitoba & Northwest Land Corporation v. Davidson, xxxiv., 255. 19. Satisfaction and discharge — Payment in advance — Custody of deeds — Notarial pro- fession in Quebec — Art. 3665 R. 8. Q. — Attorney in fact — Implied mandate — Evi- dence — Parol — Commencement of proof in writing— Art. 1233 C. C. — Admissions— Art. 316 C. P. Q. — Practice — Adduction of evi- dence — Objections to testimony — Rule of public order.] — A notary public, in the Province of Quebec, has not any actual or ostensible authority to receive moneys in- vested for his clients under instruments exe- cuted before him and remaining in his custody as a member of the notarial profes- sion of that province. — ^Admissions made to the effect that a notary had invested moneys and collected interest on loans for the plain- tiff do not constitute evidence of agency on the part of the notary, nor could they amount to a commencement of proof in writing as required by art. 1233 of the Civil Code, read in connection with art. 316 of the Code of Civil Procedure, to permit the adduction of parol testimony as to the authorization of the notary to receive pay- ment of the capital so invested or as to the repayment thereof alleged to have been made to him as the mandatary of the creditor. — The prohibition of parol testi- mony, in certain cases, by the Civil Code is not a rule of public order whitfh must be judicially noticed, and, where such evi- dence has been improperly admitted at the trial without objection, the adverse party cannot take objection to the irregularity on appeal. Gervais v. McCarthy, xxxv., 14. 20. Broker — Sale of land — • Commission for procuring purchaser — Company law ■ — Commercial corporation — Contract — Powers of general manager.] — A land broker volun- teered to make a sale of real estate owned by a trading corporation and obtained, from the general manager, a statement of the price, and other particulars with that ob- ject in view. He brouglit a person to the manager who was able and willing to pur- chase at the price mentioned and who, after some discussion, made a deposit on account of the price and proposed a slight variation as to the terms. They failed to close and the manager sold to another person on the following day. The broker claimed his com mission as agent for the sale of the pro- perty, having found a qualified purchaser at the price quoted. — Held, affirming the judgment appealed from (14 Man. Rep. 650), Taschereau, C.X and Girouard, J., dubitante, that the broker could not re- cover a commission as he had failed to se- cure a purchaser on the terms specified. Under the circumstances, as the owner did not accept the purchaser produced and close the deal with him, there could be no infer- ence of the request necessary in law as the basis of an obligation to pay the plaintiff a commission. — Per Taschereau, C.J. and Gir- ouard, J. That the general manager of a commercial corporation could not make a 937 PKINCIPAL AND AGENT. 938 binding agreement for the sale of its real estate without special authorization for that purpose. Calloway v. Stobart Son and Co., XXXV., 301. 21. Broker — Gambling on margins — Ad- vances by agent — Criminal Code, s. 20J,] — P. speculated on margin in stocks, grain, etc., through C. & Sons, brokers in Toronto, and in March, 1901, directed them to buy 30,000 bushels of May wheat at stated prices. The order was placed with a firm in BufEalo, and the price going down C. & Son forwarded money to the latter to cover the margins. P. having written the brokers to know how he stood in the trans- action received an answer stating that "no doubt the wlieat was bought and has been carried, and whether it has or not, our good money has gone to protect the deal for you," on which he gave them his note for $1,500 which they represented to be the amount so advanced. Shortly after the BufEalo firm failed and P. became satisfied that they had only conducted a bucket shop and the trans- action had no real substance. He accord- ingly repudiated his liability on the note, and S. & Son sued him for the amount of the same. — Held, Davies and KiUam, JJ., dissenting, that the evidence shewed that the transaction was not one in which the wheat was actually purchased ; that 0. & Son were acting therein as agents of the BufEalo firm ; that the transaction was not completed until the acceptance by the firm in BufEalo was notified to P. in Toronto ; and being con- summated in Toronto it was within the terms of s. 201 Crim. Code, and plaintiff could not recover. — Held, also, Davies and Killam, JJ., dissenting, that assuming C. & Son to have been agents of P. in the trans- action they were not authorized to advance any money for their principal beyond the sums deposited with them for the purpose. — Held, per Davies and Killam, JJ., that the transaction was completed in Buffalo and in the absence of evidence that it was il- legal by law there the defence of illegality could only be raised by plea under rule 271 of the Judicature Act of Ontario. Pear- son V. Carpenter, xxxv., 380. 22. Breach of contract — Breach of trust — Assessment of damages — Sale of mining areas — Promotion of company—Failure to deliver securities — Account — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel] — The plaintiffs trans- ferred certain mining areas to the defend- ant in order that they might be sold to- gether with other areas to a company to be incorporated for the purpose of operating the consolidated mining properties, the defend- ants agreeing to give them a proportionate share of whatever bonds and certificates of stock he might receive for these consolidated properties upon the flotation of the scheme then being promoted by him and other as- sociates. In order to hold some of the areas it became necessary to borrow money and the lender exacted a bonus in stock and bonds which the defendant gave him out of those he received for conveyance of the properties to the company. After deduct- ing a ratable contribution towards bis bonus, the defendant delivered to the plaintifEs the remainder of their proportion of stock and bonds, but did not then inform them that such deductions had been made, and they, consequently, made no demand upon him for the balance of the shares and bonds until some time afterwards when tbey brought the action to recover the securities or their value. — Held, affirming the judgment appealed from, that whether the defendant was to be regarded as a trustee or as the agent of the plaintiffs, he was not entitled, without their consent, to make the deduc- tions, either 6y way of salvage or to indem- nify himself for expenses necessarily in- curred in the preservation of the properties ; and that, under the circumstances, their failure to demand delivery of the remain- der of the securities before action did not deprive the plaintifEs of their right to re- cover.-^If the defendant is to be consid- ered a trustee wrongfully withholding se- curities which he was bound to deliver, he is liable for damages calculated upon the assumption that they would have been dis- posed of at the best price obtainable. If, however, he is to be regarded as a contractor who has failed to deliver the securities ac- cording to the terms of Ms agreement, he is liable for damages based on the selling price of the securities at the time when his obligation to deliver them arose. Nant- Y-Olo and Blaina Ironworks Co. v. Grave (12 Ch. D. 738) ; The Steamship Carris- broohe Go. v. The London and Provincial Marine and General Ins. Co. ((1901) 2 K. B. 861) and Michael v. Hart & Co. ((1902) 1 K. B. 482), followed. McNeil v. Fultz, xxxviii., 198. 23. Secret profit — • Trust — Clandestine transactions by broker — Sham purchaser — Commission — Quantum meruit."] — H.. a broker, undertook to obtain two lots for F., as an investment of funds supplied by F. for that purpose, at prices quoted and on the understanding that any commi^ion or brokerage chargeable was to be got out ot the vendors. H. purchased one of the lots at a price lower than that quoted, receiving, however, the full amount quoted from F., and, by representing a sham purchase of the other lot, got an advance from F. in order to secure it. — Held, affirming the judg- ment appealed from, that H. was the agent of F. and could not make any secret profits out of the transactions, nor was he entitled to any allowance by way of commission or brokerage in respect of either of the lots so purchased. Hutchinson v. Fleming, xl., 134. 24. Ships and shipping — Material used in construction — Sole of goods — Contract — Principal and agent — Misrepresentations — Mistake — Conversion — Trover — Evidence — Misdirection — New trial — Ship's hus- band — Pledging credit of owners — Necessary outfitting at home port.] — While a three- masted schooner was in course of construc- tion, B. obtained goods on credit from the plaintifEs (appellants) falsely representing that his co-defendants were interested in the ship. The materials were built into the ship and used in rigging and equipping her; she was launched and registered in the name of E. as sole owner, and, subsequently, these co-defendants became bond fide pur- chasers of certain shares in the ship, E. was registered as her managing owner, and she was sent to sea. — Held, that sending the ship to sea was not such a conversion of 939 PEINCIPAL AND AGENT. 930 the materials worked into the ship as could support an action in trover against the sub- sequent purchasers of shares in her. — After the purchasers of the above mentioned shares were registered as co-owners, E. obtained, on a further credit, metal sheathing and other goods from the plaintiffs which were used in sheathing and further outfitting the vessel, at the port where she had been built, and where the owners resided, before send- ing her out to sea. — Held, that the managing owner had power to pledge the credit of the owners for such necessary purposes. The "Huntsman," ((1894) P. T>. 214), followed. — The judgment appealed from (32 N. B. Rep. 147), which ordered a new trial on the ground of misdirection, was affirmed. Troop V. Everett, Cout. Cas. 131. 25. Broker — Commission on sale of land — Introduction of purchaser — Efficient cause of sale — Completion of contract by owner on altered terms.']- — ^An agent, instructed to se- cure a purchaser for lands, introduced a prospective purchaser who associated him- self with other persons, whose identity was unknown to the agent, to carry out the pur- chase of the property. The individual thus introduced and his associates subsfequently carried on negotiations with the owner per- sonally which resulted in the purchase, on altered terms, of the property in question, together with other lands, by his associates alone while he retired from the transaction. The owner refused to pay the agent any commission on the sale on the ground that he had not been the efficient cause of the sale which was finally made as above stated. Held, reversing^ in part, the judgment ap- pealed from (3 Sask. L. R. 286), that as the steps taken by the agent had brought the owner into relation with the persons who finally became purchasers he was en- titled to recover the customary commission upon the price at which the property in question had been sold. Burchell v. Gotcrie and Blockhouse Collieries ( [1910] A. C 614), applied. Straton v. Yachon, xliv., 395. 26. Broker — Sale of land — Principal and agent — Disclosing material information — Secret profit — Vendor and purchaser — Agent's right to sell or purchase — Specific performance.'] — A broker being informed by the owners that they would sell certain lands entered a description of the property in his list of lands for sale through his agency. The lands being still unsold about three months later, the broker, in consideration of a payment of $50, obtained an exclusive option from the owners for the sale or pur- chase by himself, within 30 days, of the lands at a price named, which was to in- clude his commission in the event of his effecting a sale, but without disclosing in- formation of which he was then possessed that there was a probability of the lands selling within a short time at an increased price. Within a few days after the date of the option he effected a sale, in his own name, of the lands for double the price named therein, notified the owners that he exercised bis option to purchase and demanded a conveyance. In an action for specific performance, brought by the broker on refusal of such conveyance. — Held, per Fitzpatriek, C.J.— That by the terms of the written agreement the broker became an agent for the sale of the lands with the op- tion of purchasing them for himself; that be could not become purchaser until he had divested himself of his character as agent;' that he was, as agent, bound to disclose to his principals the knowledge he had acquired respecting the improved prospects of a sale at enhanced value, and his exercise of the option to purchase did not relieve him of this obligation. He was, therefore, not en- titled to a decree for specific performance. Per Davies, Idington, Anglin and Brodeur, JJ. — ^That the broker was an agent for the sale of the lands at the time he procured the option and, having failed in his duty to disclose to his principals all material in- formation he had as to the probability of the lands selling at a higher price than that mentioned, specific performance of the agree- ment to sell to him should be refused. — The judgment appealed from (16 B. C. Rep. 308) , was reversed. Bentley v. Nasmith, xlvi.. 477. 27. Company — Subscription for treasury stock — Contract — Misrepresentation — Fraud — Transfer of shares — Rescission — Re- turn of payments — 'Want of consideration.'] — V. entered into an agreement to purchase for re-sale the unsold treasury stock of a foreign joint stock company, "subscriptions to be made from time to time as sales were made" ; it was therein provided that the company should fill all orders for stock re- ceived through V. at $15 for each share ; that V. should sell the stock for $20 per share; that V. should "pay for the stock so ordered with the proceeds of sales made by him or through his agency," and that the contract should continue in force so long as the company had unsold treasury stock with which to fill such orders. The company also gave V. authority to establish agencies in Canada in connection with its casualty insurance business and to appoint medical examiners there. At the time the company had no license to carry on the business of insurance in Canada, nor any immediate in- tention of making arrangements to do so, and V. was an official of the company and was aware of these facts. V. appointed T. the sole medical examiner of the company for Vancouver, B.C., assuring him that the company would commence to carry on its casualty insurance business there within a couple of months, and then obtained from him a subscription for a number of shares of the company's treasury stock which were paid for partly by T.'s cheques, payable to the company, and the balance by a series of promissory notes falling due from month to month following the date of the suljscrip- tion and made payable to V. A number of shares equal to those so subscribed for by T. were then transferred to him by V. out of the allotment made to him by the above mentioned agreement, the certificates therefor being obtained by V. in the name of T. from the company, but the company did not formally accept T.'s subscription nor issue any treasury stock to him there- under. The jcompany (did not commence business in Vancouver within the time speci- S.C.D.— .30 931 PEINCIPAL AND AGENT. 933 fied by V. nor did it obtain a license to carry on the business of insurance in Can- ada until many months later. In an action by T. against the company and V. to re- cover back the money he had paid and for the cancellation and return of the notes. — Held, affirming the judgment appealed from (7 D. L. R. 944; 2 West. W. R. 658), Davies and Anglin, JJ., dissenting, that, in the transaction which took place, V. was the company's agent ; that the company was, consequently, responsible for the deceit prac- tised in procuring the subscription from T. ; that there had been no contract for the pur- chase of treasury stock completed between the company and T. ; that the object of T.'s subscription was not satisfied by the trans- fer of V.'s shares to him, and that be was entitled to recover back the money he tad paid and to have the notes returned for can- cellation as having been paid over and de- livered without consideration, and in con- sequence of ithe fraudulent representations made by V. International Casualty Co. v. Thompson, xlviii., 167. 28. Grown lands — Location — Public policy — Evasion of statute — B. C. "Land Act," 8 Edw. VII. c. 30, ss. S4, 36— Sale of Crown lands — Commission on sales — Quantum meruit — Tainted contract.'^ — B., who had laid out and inspected Crown lands as a Government surveyor, furnished information to the defendant and an associate which en- abled them to secure choice locations, com- prising over 7,000 acres of these lands, in the names of a number of persons nominated by them and employed as "stakers." Sub- sequently B. assisted in the disposal of the lands thus secured to innocent purchasers under an arrangement with the defendant and his associate that he was to participate in any profits which should be obtained on such sales. In an action by B. to recover compensation for the services te had ren- dered in regard to these sales : — Held, that the circumstances disclosed a scheme con- cocted in opposition to the policy of the British Columbia "Land Act," and in viola- tion of its provisions respecting the dis- posal of Crown lands ; consequently, the agreement, being tainted with the character of the scheme, ought not to be enforced by the courts. — Per Idington and Anglin, JJ. — The plaintiff's claim fails for want of evi- dence of any request by the defendant that he should render the services in respect of which remuneration is claimed nor an agree- ment to remunerate him for assistance in effecting the sales in question. — ^Tbe judg- ment appealed from (3 West. W. R. 725; 23 West. L. R. 30 ; 9 D. L. R. 400), stood affirmed. Broionlee v. Mcintosh, xlviii., 588. 29. Bale of lands — Contract — Agreement for re-sale — Novation — Rescission — Specific performance — Defence to action — Practice — Evidence — Statute of Frauds — Agent pur- chasing — Disclosure — Findings of fact.] ■ — • In a suit for specific performance of a con- tract for the sale of lauds an agreement for the re-sale of the lands may be set up as a defence notwithstanding that such re- sale agreement does not satisfy the require- ments of the 4th section of the Statute of Frauds. Judgment appealed from (10 D. L. R. 765), affirmed. — Such an agreement for re-sale affords a sufficient reason for re- fusing a decree for specific performance of the original contract for sale. — ^The Su- preme Court of Canada refused to review the finding of the courts below that the de- fendants, while agents for the sale of the property in question, when purchasing it themselves under the contract for re-sale, had discharged their duty towards the plain- tiff In regard to disclosure of material facts relating to the value of the property. — Per Davies and Idington, JJ. — Where the par- ties to a contract come to a fresh agree- ment of such a kind that the two cannot stand together the effect of the second agree- ment is to rescind the first. Frith v. Al- liance Investment Co., xlix., 384. 30. Broker — Dealings "on Change" — Spe- culative options — Liability for contracts by agent in his own name — Privity of contract ■ — Purchases and sales on "m,argin" — Settle- ments through clearing house — Wagering contract — Mahim prohibitum — Crimmal Code, s. 231.} — B. entered into speculative transactions, on "margin," by instructing the plaintiffs, members of a "Grain Ex- change" to buy and sell for him on the Ex- change, • from time to time, quantities of grain for future delivery in accordance with the rules, regulations and customs of the Exchange, and a number of purchases and sales were made on commission for him. He was not, however, informed of the names of any sellers or purchasers, the brokers carrying out the transactions in their own names. There was a "clearing house" as- sociation connected with the Grain Ex- change of which the broilers dealing on the Exchange were members and through which all transactions were settled dafly by setting off purchases against sales, lia- bility for the same being assumed by the clearing house and the brokers released upon a settlement for the resulting balances instead of for every separate transaction reported. It was not proved that B. was aware of this practice as to settlements, al- though he, from time to time, had paid "margins" to the brokers when required to do so by them in order to protect them against losses on his account. B. became in arrears for "margins" and, in an action against him, the brokers recovered the amount of their claim. — Held, reversing the judgment appealed from (23 Man. R. 306), the Chief Justice and Duff, J., dissenting, that, as the evidence failed to shew that, by the manner in which the transactions were made, the amounts claimed had been expended in carrying out the commissions according to the instructions the brokers had received from B., they were not entitled to recover the balance so claimed from him. — Held, further, per Idington and Brodeur, JJ., and semble per Anglin, J. — ^Where, in such transactions, neither party intends that there should be actual delivery made or received of the commodities to which the purchases or sales relate the contracts are illegal and prohibited by the terms of s. 231 of the Criminal Code. Beamish v. Richard- son & Sons, xlix., 595. 31. Commission on sales — "Accepted orders" — Contract for sale — Gonstructiorir — Words wnd phrases.'] — A paper manufactur- ing company in Quebec agreed to give W. 933 PEIXCIPAL AXD AGENT. 934 a commission of five per cent, on all "ac- cepted orders" obtained by him in Ontario, to be payable as soon as an order was ship- ped. Through W.'s agency a contract was entered i»to whereby a company in Toronto agreed to purchase from the Quebec com- pany during one year paper of a specified kind to the extent of not less than $35,000, to be furnished from time to time on re- ceipt of specifications and directions as to destination. When paper to the value of over $5,000 had been shipped under this contract the Toronto company refused to furnish further specifications on the ground that said paper was not satisfactory and the contract was not further performed. — Held, per Fitzpatrick, C.J. and Idington, J. (Duff, J., contra) , that the contract with the Toronto company constituted an "ac- cepted order" within the terms of the agree- ment with W., who, as it was through the fault of his principals that the contract was not performed, was entitled to the balance of his commission on the contract price of $35,000. — Per Davies and Anglin. JJ.— If under the contract the only "accepted orders" were those fiUed from time to time on receipt of specifications and directions from the purchasers the discontinuance of their sending in the same was due to the failure of the vendors to furnish sat- isfactory paper and W. was entitled to damages for being prevented by such failure from earning his commission. As the evi- dence shewed that he had done all that could be incumbent upon him to have the contract performed the measure of his dam- ages would be his commission on the con- tract price. — Per Duff, J., dissenting. — The only "accepted orders" under the contract were those to be filled from time to time on receipt of specifications. As bis case under the pleadings was confined to recovery of the commission on the basis of the con- tract with the Ontario company being an "accepted order" and as no claim was put forward (or investigated) at the trial on the basis of the appellant having wrong- fully been prevented earning his commission by procuring "accepted orders" or advanced by the appellant at any stage of the pro- ceedings, the judgment could not be sus- tained on that basis unless it was clear that all the evidence bearing upon such a claim was to be found in the record. Whyte V. National Paper Co., li., 162. 32. Broker — "Real estate agent" — Sale of land — "Listing" on broker's iooks — Auth- ority to make contract.] — Where the prin- cipal has merely instructed a broker to place lands on his list of properties for sale, such "listing" does not of itself con- stitute an authorization to the broker to enter into a contract for the sale of the lands on behalf of his priucipal. — Judgment appealed from (7 West. W. R. 85), afiirmed. Peacock v. Wilkinson, U., 319. 33. Sale of land — Commission for pro- curing purchaser — Sale to person intro- duced hy broker. Bridgman v. Hepburn, xlii., 228. 34. Action — Public officer — 'Notice — Notary public — Mandate — Pleading — Prac- tice — New objections on appeal — Case on ap- peal—Notes of reasons by judges—Findings of fact— Art. 88 G. P. Q., xlvii., 382. See Pbaotioe. 35. Crown lands — Location — Public pol- icy—Evasion of statute— B. C. "Land Act " S Edw. TIL, c. 30, ss. 3/,, 38— Sale of Crown lands — Commission on sales — Quantum meruit — Tainted contract. Brownleo v. llclntosh, xlviii., 588. See Cbown Lands. 36. Broker — Sale of land — Commission — General employment — Introduction of pur- chaser — Interference by principal: —Quantum meruit — Variation of written contract — Evi- dence — (Alta.) 6 Edw. TIL, xUx., 1. See Bbokek. 37. Sale of chattels — Public auction — Dis- closure of principal — Liability of auctioneer — Giving credit — Post-dated cheque. Pres- cott V. Trapp & Co., 1., 263. See Auction. 38. Broker — Transactions of change — Sale of goods — Action — Evidence — Parol testimony— Arts. 1206, 1233, 1235 C. C, liv., 131. See Beokeb. 4. Othee Cases. 39. Ownership — Lease — ■ Sheriff's sale — Title to land — Insurable interest — Fire in- surance — Trust — Beneficiary — Fraudulent contrivances — Estoppel, xxxiv., 1. See Lease. 40. Debtor and creditot — Assignment of debt — Sheriff's sale — Equitable assignment — Statute of limitations — Payment — Ratifica- tion, XXXV., 533. See Sheeitp. 41. Sale of goods — Suspensive condition — Term of credit — Delivery — Pledge — Ship- ping bills — Bills of lading — Indorsement of bills — Notice — Fraudulent transfer — Insol- vency — Banking — Bailee receipt — Brokers and factors — Resiliation of contract — Re- vendication — Damages — Practice — Pleadr- ing, xxxvi., 406. See Sale. 42. Sale of goods — Contract by corres- pondence — Statute of Frauds — Delivery by agent — Statutory prohibition — Illicit sale of intoxicating liquors — Knowledge of seller — Talidity of contract, sxxvii., 55. See Conteact. 43. Election petition — Trial — Corruption at former election — Evidence to prove agency xxxvii., 604. See EJECTION Law. 14. Tender and purchaser — SoJe of land — ■ Formation of contract — Conditions — Accept- ance of title — New term — Statute of Frauds — Secret commission — Avoidance of contract — Fraud — Specific performance, xxxviii., 588. See Contkaot. 935 PKINCIPAL AND SUEETY. 936 45. Broker — Stock — Purchase on mar- gin — Pledge of stock ty broker — Possession for delivery to purchaser, xxxviii., 601. See Broker. 46. Insurance — Sprinkler system — Dam- age from leakage or discharge — Injury from frost — Application — Interim receipt, xxxix., 558. See INSUBANCB, AccinENT. 47. Banks and banking — Forged cheque — 'Negligence — Responsibility of drawee — Payment — Mistake — Indorsement — Implied warranty — Action — -Money had and received — Change in position — Laches, xl., 366. See Banks and Banking. 48. Broker — Sale of mining land — Com- mission — Change of purchaser — Continued transaction, xl., 414. See Bbokeb. 49. Bills and notes — Material alteration — Forgery — Partnership — Mandate — Assent of parties — Liahility of indorser — Construc- tion of statute — "Bills of Exchange Act," xl., 458. See Bills and Notes. PKINCIPAL AND SURETY. 1. Mandate — Negligence — Laches— Re- lease of surety — Mortgage — Pledge— Gon- struction of contract — Principal and agent — Arts 1570, 1959, 1966, 1913, G. C] — Upon the execution of a deed of obligation and hypothec, the plaintifEs became sureties for the debtor and, for further security, the debtor assigned and delivered to the mort- gagee, by way of pledge, a policy of assur- ance upon his life for the amount of the loan. One of the clauses of the deed provided "for further securing the repayment of the said loan, interest and accessories and premiums of insurance on the said life policy" that the debtor and sureties "by way of pledge a titre d' antichrese, transferred and made over unto the said lender" certain constituted rents and seignorial dues. The deed further pro- vided that the actual agent of the seigniory should remain agent until the loan should be repaid with interest and insurance premiums disbursed by the creditor, and that the credi- tor should have the right to dismiss said agent should he fail to make out of the revenues of the seigniory and remit to the creditor the amount necessary for the payment of such interest and insurance premiums. It further provided that the lender should not be re- sponsible to the debtor and sureties for the agent's acts, the debtor and sureties assum- ing responsibility therefor. The judgment appealed from found, as facts, that the sureties bad made a provision in the hands of the creditor for the purpose of payment of the premiums out of the revenues as- signed, that, for such purpose, the creditor had become the mandatary of the sureties and responsible for the due fulfilment of such mandate, and that there were sufficient funds, derived from such revenues, to pay a renewal premium which fell due shortly be- fore the death of the debtor, and of which payment had been omitted to be made though some neglect or fault of the creditor in obtaining the funds therefor from the agent. In consequence of this failure to pay the premium the benefit of the policy was lost.- — Held, affirming the judgment appealed from (Q. R. 13 K. B. 329), Idington, J., dis- senting, that the deed contemplated the pay- ment of the premiums by the creditor out of the funds assigned; that the creditor had failed to use proper diligence in respect to the payment of the premium and that the sure- ties were, therefore, entitled to be discharged pro tanto and the projwrty pledged released accordingly. Trust and Loan Co. of Canada V. Wurtele, xxxv., 663. 2. Suretyship — Collateral deposit — Ear- marked fund — Appropriation of proceeds — Set-off — Release of principal debtor — Con- structive fraud — Discharge of surety — ■ Bight of action — Common counts — Equit- able recourse.] — K. owed the corporation $33,527.94 on two judgments recovered on notes for $10,000 given by him to R., and a subsequent loan to him and R. for $20,- 000. M., at the request of and for the ac- commodation of R-, had indorsed the notes for $10,000 and deposited certain shares and debentures as collateral security on his in- dorsement. K. and R. deposited further collateral securities on negotiating the second loan, but K. remained in ignorance of M.'s indorsements and collateral deposit until long after the release hereinafter mentioned. These judgments remained unsatisfied for over six years, but, in the meantime, the corporation had sold all the shares deposited as collateral security, and placed the money received for them to the credit of a suspense account, without making any distinction be- tween funds realized from M.'s shares and the proceeds of the other securities and without making any appropriation of any of the funds towards either of the debts. On 28th February, 1900, after negotiations with K., to compromise the claims against him, the agent of the corporation wrote him a letter offering to compromise the whole in- debtedness for $15,000, provided payment was made some time in March or April fol- lowing. This offer was not acted upon until November, 1901, when the corporation car- ried out the offer and received the $15,000, having a -few days previously appropriated the funds in the suspense account, applying the proceeds of M.'s shares to the credit of the notes he had indorsed. The negotiations and the final settlement with K. were not made known to M., and K. was not informed of his continuing liability towards M. as a suvpty. — Held, per Sedgewick, Girouard, Davies and Idington, JJ. (reversing the judgment appealed from (11 B. C. Rep. 402) ) that the secret dealings by the cor- poration with K. and with respect to the debts and securities were, constructively, a fraud against both K. and M. ; that the release of the principal debtor discharged M. as surety, and that he was entitled to re- cover the surplus of what the corporation received applicable to the notes indorsed by him as money had and received by the cor- poration to and for his use. — Held, by Mac- lennan, J., that, on proper application of all the money received, the corporation had got more than sufficient to satisfy the amount 937 PEIOEITY. 938 for which M. was surety and that the sur- plus received in excess of what was due upon the notes was, in equity, received for the use of M. and could be recovered by him on equitable principles or as money had and received in an action at law. Milne v. York- shire Ouarantee Corporation, xxxvii., 331. 3. Promissory note — Protest in London, England — Notice of dishonour to indorser in Canada — Knowledge of address — First mail leaving for Canada — Notice through agent — Agreement for time — Discharge of surety — Avvi^opriation of payments — Evidence.'] — Notes made in St. John, N.B., were pro- tested in London, England, where they were payable. The indorser lived at Richibucto, N.B. Notice of dishonour of the first note was mailed to the indorser at Richibucto, and, at the same time, the protest was sent by the holders to an agent at Halifax, N.S., instructing him to take the necessary steps to obtain payment. The agent, on the same day that he received the protest and instruc- tions, sent, by post, notice of dishonour to the indorser at Richibucto. As the other notes fell due, the holders sent them and the protests, by the first packet from London to Canada, to the same agent, at Halifax, by whom the notices of dishonour were for- warded to the indorser, at Richibucto. — Held, Idington and Duff, JJ., dissenting, that the sending of the notices of dishonour of the first note direct from London to Richibucto, with the precaution of also send- ing it through the agent, was an indication that the holders were not aware of the cor- rect address of the indorser and the fact that they used the proper address was not con- clusive of their knowledge or sufficient to compel an inference imputing such know- ledge to them. Therefore, the notices in respect to the other notes, sent through the agent, were sufficient. — Per Idington and Duff, JJ., dissenting, that the holders had failed to shew that they had adopted the most expeditious mode of having the notices of dishonour given to the indorser. — The maker of the note gave evidence of an offer to the holders to settle his indebtedness, on certain terms and at a time some two or three years later than the maturity of the last note, and that the same was agreed to by the holders. The latter, in their evidence, denied such agreement and testified that, in all the negotiations, they had informed the maker that they would do nothing whatever in any way to release the indorser. — Held, that the evidence did not shew that there was any agreement by the holders to give time to the maker and the indorser was not discharged. If the existence of an agreement could be gathered from the evidence, it was without consideration and the creditors' rights against the sureties were reserved. — Per Idington and Duff, JJ., that a demand note given in renewal of a time note and accepted by the holders is not a_ giving of time to the maker by which the indorser is discharged. — Judgment of the Supreme Court of New Brunswick (37 N. B. Rep. 6.30), reversed. Fleming v. McLeod, xxxix., 290. 4. Company law — Insolvency of deltor — - Action iy liquidator against principal credi- tor — Compromise — Agreement not to rank — Payment ly sureties — Right of sureties to rank.] — By a contract of suretyship C. and others guaranteed payment to a bank of ad- vances to a company by discount of negoti- able securities and otherwise, the contract pro- viding that it was to be a continuing guar- antee to cover any number of transactions, the bank being authorized to deal or com- pound with any parties to said negotiahle securities and the doctrines of law and equity in favour of a surety not to apply to its dealings. The oompany became insol- vent and its liquidator brought action against the bank to set aside some of its securities, which action was compromised, the bank receiving a certain amount, reserv- ing its rights against the sureties and agree- ing not to rank on the insolvent estate. The sureties were obliged to pay the bank and sought to rank for the amount. — Held, affirm- ing the judgment of the Appellate Division (28 Ont. L, R.'481), that they were not de- barred by the compromise of said action from so ranking. Brown v. Goughlin, 1., 100. •J. Company law — Trading compaivy — Powers — Contract of suretyship — R. 8. O. [1897] c. 191.] — ^An industrial company in- corporated under, and governed by the "On- tario Companies Act," R. S. O. [1897] c. 191, has no power to guarantee payment of advances by a bank to another company whose sole connection with the guarantor is that of a customer, for the general purposes of the latter's business, and such a contract of suretyship is ultra vires and void. — .Judgment appealed against (30 Ont. L. R. 87) affirmed. Union Bank V. McKillop, li., 518. 6. Jury trial — Judge's charge — Practical withdrawal of case — Evidence — New trial, xxxviii., 165. See New Teiai.. 7. Contract — Conditional sale — Ouarantee — Rescission — Mortgagor and mortgagee — Power of sale — Creditor retaking possession — Continuing liability — Appropriation of money received ly ^creditor — Release of debtor — Discharge of surety, Cout. Oas. 217. See Chattel Mortgage. 8. Cancellation of contract — Expelling contractor — rCondition precedent — Posses- sion of plant — Waioer — Seiziire in execution — Interpleader — Insolvency — Ahandon- inent of works. Uplands, Limited v. Good- acre, 1., 75. See Contract. PRIORITY. 1. Assignment ly mortgagor for benefit^ of creditors — Priorities — Assignment of claims of execution creditors — Redemption — As- signments and Preferences Act, s. 11 (Ont.), xxxix., 229. gee Mortgage. 2. Privileges and hypothecs — Pramway — Operation on highway — Title to land — Im- mobilization by destination — Sale of tram- 939 PEIVY COUNCIL. 940 way "by sheriff as u, "go%ny vuncern" — Un- paid vendor — Lien on price of cars — Pledge — Construction of statute, 3 Edw. VII. c. 91 (Que.) — Priority of claim — GollQcation and distrilution^-Arts. S79, 2000 C. C. — Art. 752 Mun. Code. Ahearn & Soper v. HI. T. Trust, xlii., 267. See Pkivileges and Hypothecs. 379, 2000 C. C.—Art. 752 Mun. Code, xUi., 267. JSfee tdVm. PRIVILEGE. 1. Libel — Privileged publications — Re- ports of judicial proceedings — Public policy — Pleadings filed in civil actions — Proceed- ings not in open court.'i — The publication of the statements contained in a. pleading filed in the course of a civU action, merely because such statements form part of such a pleading, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings. — The judgment appealed from (Q. R. 17 K. B. 309), reversing the judg- ment of the Superior Court (Q. E.. 31 S. C. 338), was affirmed. Gazette Printing Co. v. Shallow, xli., 33». 2. Constitutional law — Legislative Assem- bly — Powers of Speaker — • Precincts of House of Assembly — Expulsion, xxxiv., 400. See Constitutional Law. 3. Liquidation of insolvent corporation — Distribution and collocation — Privileged claim — Expenses for preservation ■ of estate — Fire insurance premiums — Practice — • Ex parte inscription — Notice — Arts. 371, 373, 419, 1043-1046, 1201, 1994, 1996, 2O01, 2009, C. C, xxxix., 318. See Company. 4. Shipping — Material men — Supplies furnished for "last voyage" — Privilege of dernier Squipeur — Round voyage — Char- ter-party — Personal debts of hirers — i8ei- zure of ship— Arts. 2383, 2391 C. C.—Art. 931 G. P. Q. — Construction of statute — Or- donnances de la Marine, 1681, xl., 45. See Ships and Shipping. 5. Crown lands — Holders of location tic- ket — Prior right to mining rights — Privilege reserved to "proprietor of the soil" — Con- struction of statute — R. S. Q. (18S8) ss. 1269, 1440, 1441 ; 55 d 56 Vict. c. 20 (Que.), xl., 647. See Crown Lands. And see Lien ; Moetgage ; Rent Charge. 6. Sale of standing timber — Registration of real rights — Ownership — Distinction of things — Movables and immovables — Priority of title, xli., 105. See Registry Laws. 7. Tramway — Operation on highway — Title to land — Immobilization by destination — Sale of tramway by sheriff as "going con- cern" ; — Unpaid vendor — Lien on price of cars — Pledge — Contract — Construction of statute, S Edw. VII. c. 91 (Que.)— Priority of claim — Collocation and distribution — Arts PKIVY COTJNCII.. Cases affirmed, reversed or otherwise dealt with on appeal from the Supreme Court of Canada, «ee Appendix. 1. Appeal to Privy Council — Admiralty cases — Order for bail.] — In an action in the Vice-Admiralty Court, an appeal was al- lowed by the Supreme Court of Canada. On application in chambers for an order under the rules established by the Colonial Courts of Admiralty Act, 1890 (Imp.), fixing bail to be given upon an appeal to the Privy Council to answer the costs of such appeal, after hearing both parties, it was ordered that bail to answer such costs, in the sum of £300 sterling to the satisfaction of the registrar of the Supreme Court of Canada, should be given within a time stated ; costs of the application to ibe costs in the cause. (The appeal was argued before the Judicial Committee without objection as to this pro- cedure ; 48 Can. Gaz. 279. See also [1907] A. C. 112). SS. "Cape Breton" v. Richelieu and Ontario Navigation Co., xxxvi., 592 note. 2. Appeal to Privy Council — "Colonial Courts of Admiralty Act," 1890 (Imp.) — Right of appeal de piano — Bail for costs — - Practice.] — Upon the application of the ap- pellants (30th March, 1906), for an order to fix bail on a proposed appeal, direct to His Majesty in Council, under the rules established by the "Colonial Courts of Ad- miralty Act," 1890 (Imp.), the Supreme Court of Canada, sitting in banco, after hearing counsel for and against the applica- tion, made an order pro forma (without ex- pressing any opinion as to the right of ap- pealing de piano), that the appellants should give bail to answer the costs of the proposed appeal in the sum of £300 sterling, to the satisfaction of the registrar of the Supreme Court of Canada, on or before the 4th of April, 1906. The "Albano" v. The "Pari- sian," xxxvii., 301. S. Practice — Appeal to Privy Council — Stay of execution — Security.] — Where after judgment on appeal to the Supreme Court of Canada the losing party proposes to appeal to the Judicial Committee of the Privy Council the court will order proceedings on such judgment in the court of original jur- isdiction to be stayed on satisfactory secur- ity being given for the debt, interest and costs. Union Investment Co. v. Wells; Montreal Light, Heat & Power Co. v. Re- gan; B. N. White Co. v. Star Mining & Milling Co., xli., 244. 4. The Judicial Committee of the Privy Council refused leave to appeal from a judgment of the Supreme- Court of Canada in accord with a long series of decisions in the Dominion. Armstrong Case referred to by the Chief Justice. The King v. Desros- iers, xli., 71. And see Negligence. 941 PEOVINCIAL ACCOUNTS. 942 5. Varying judgment in terms of decision, on appeal to Privy Council in another case in pari materid, Cout. Oas. 196. See Judgment. 6. Appeal — Practice — Appeal hy respond- ent to Privy Council — Stay of proceedings, Cout. Gas. 409. gee Appeal. 7. Appeal — Court of Reviev: — Appeal to Privy Council — Appealable amount — Amendr ment to statute — Application — Notice of ap- peal, xli., 639. See AppEAl. 8. Appeal from Court of Review — Amount in controversy — Jurisdiction of Supreme Court. Beauvais v. Qenge, liii., 353. •See Appeal. PROHIBITION. Extradition — Prohibition against proceed- ings — Appeal — Jurisdiction — Supreme Court Act, s. tk (g)—5k & 55 Vict. c. 25, s. 2 — Construction of statute — Public poUoy.] — A motion for a writ of prohibition to re- strain an extradition commissioner from in- vestigating a cliarge of a criminal nature upon whicli an application for extradition has been made is a proceeding arising out of a criminal charge within the meaning of s. 24 (g) of the Supreme Court Act, as amended by 54 & 55 Vict. e. 25, s. 2, and in such case, no appeal lies to the Supreme Court of Canada. In re Vf^oodhall (20 Q. B. D. 832) and Hunt v. The United States (16 U. S. R. 424) referred to. (A petition for leave to appeal to Privy Council was abandoned and dismissed, 26th July, 1905.) Oaynor and Oreene v. United States of America, xxxvi., 247. PROBABLE CAUSE. Malicious prosecution — Reasonable and probable cause — Bond fide belief in guilt — Burden of proof — Right fif action — Damages ■ — Art.' 105S G. C. — Pleading and practice, xl., 128. See Malicious Prosecution. PROMISSORY NOTE. Peters v. Perras, xlii., 244, 361. John Deere Plow Co. v. Agnew, xlviii., 208. See Banks and Banking — Bills and Notes. PROBATE COURT. Appeal — Surrogate Court — R. 8. C. 1906, c. 139, s. 37 (d), lii., 114. See Appeal. Banlcing — Purchase of company^s assets — Bill of sale — Description of chattels — B.C. "Bills of Sale Act," B. S. B. C. 1911, c. 20— Registration — Recital in bill of sale — Con- sideration — Defeasance — Reference to un- registered note — Collateral security — Loan by bank — "Banlc Act," (D.) 3 & 4 Geo. V. e. 9, s. 76. Ball v. Royal Bank, lii., 254. See Bill of Sale. PROCEDURE. See Practice; Pleading. PROOES- VERBAL. 1. Appeal — Jurisdiction — Annulment of procds-verbal — Injunction — Matter in con- troversy — Art. 560 C. C. — Servitude, xxxvii., 321. See Appeal. 2. Municipal corporation — Reservation for highway — Opening first front road — Appro- priation — Indemnity — Award — Descrip- tion of lands and owners — Formal defects — Quebec Municipal Code, arts. 16, 90S, 9.06, 91Jf, 918, xli., 585. See Municipal Corporation. PROTEST. Promissory note — Protest in London, Eng- land — Notice of dishonour to indorser in Canada — Knowledge of address — First mail leaving for Canada — Notice through agent — - Agreement for time — Discharge of surety — Appropriation of payments — Evidence, xxxix., 290. See Bills and Notes. PROVIDENT SOCIETY. Railways — Negligence — Braking appar- atus — Sand valves — Defects in machinery — Employer's liahility — Condition of indemnity — Lord GamplelVs Act — Right of action, xxxiv., 45. See Negligence. PROFIT SHARING. Master and servant — Partnership — Evi- dence-^Statute~R. S. B. G. 1911, c. S, s. 3; c. 175, s. Jf — Words and phrases — "Partner- ship," xlix., 60. See Partnership. PROVINCIAL ACCOUNTS. Arbitration and award — Statutory arbi- trators — Jurisdiction — Awards "from time to time" — Res judicata. Quehec v. Ontario, xlii., 161. See Arbitration and Award. 943 PUBLIC LAW. 944 PROVINCIAL LEGISIiATIOX. See Constitutional Law. PUBLIC AUTHORITIES. Statute — ■ "Colonial Courts of Admiralty Act, 1890" (Imp.) 53 S 54 V. c. 27—"PuUiG Authorities Protection Act, 1S92" (Imp.) t6 d 57 V. c. 61 — Limitation of actions — Effect of statutes — Practice and procedure — Jurisdiction, xlix., 627. See Statute. PUBLIC DOCUMENT. Crown lands — Lands vesting in Crown — Constitutional law — "B. N. A. Act, 1867," ss. 91 (^4) , 109-117— Title to "Indian lands" — Surrender — Sale ly Commissioner — Pro- perty in Canada and the provinces — "Indian Act," 39 V. c. 18 J B. S. G. 1906, c. 43, s. 42 — Evidence — Legal maxim. Attorney-G-en. v. Giroum, liii., 172. See Indians. PUBLIC DOMAIN. Title to land — Rivers and streams — Navi- gable or floatahle waters — Crown grant — Riparian, rights — Title to bed of river — Erec- tion of townships — Description of area in- cluded — Costs. Maclaten v. Attorney-Gen- eral for Quebec, xlvi., 656. perty ; notice thereof must be given ; an in- ventory made and a guardian appointed. Where these formalities have not been ob- served there can be no valid seizure. Brook V. Boolfer (41 Can. S. C. R. 331), referred to. — Per Fitzpatrick, C.J. — Extraordinary powers, conferred by statute, authorizing in- terference with private property must be ex- ercised in such a manner that the rights of the owners may not be disregarded. Bonanza Creek Hydraulic Concession v. The King (40 Can. S. C. R. 281) , and Biopelle v. City of Montreal (44 Can. S. C. R. 579), referred to — Per Fitzpatrick, C.J., and Davies and Id- iugton, JJ. — The authority conferred upon health officers by the "Quebec Public Health Act" respecting the condemnation, seizure and disposal of food, as being deleterious _ to the public health, is not final and conclusive in its effect, but it is to be exercised subject to the superintending power, orders and con- trol of the Superior Court and the judges thereof. — Per Anglin and Brodeur, JJ. — The protection afforded by the Quebec "Public Health Act" to an executive officer of a local board of health cannot be invoked when the officer has apparently not acted under its pro- visions, but has condemned food, not as the result of his own independent judgment upon its quality, but in carrying out instructions given him by municipal officials purporting to act under other statutory provisions. — In the result the finding of the trial judge that the food in question was fit for human con- sumption (Q. R. 39 S. C. 520), being sup- ported by evidence, was not disturbed, and the effect of the judgment appealed from (1 D. L. R. 160) was affirmed with a variation of the order making absolute the injunction against the defendant interfering therewith. City of Montreal v. Layton d Co., xlvii., 514. PUBLIC HARBOUR. 1. Municipal corporation — Aid to civil power— Pay of militia — Legislative jurisdic- tion — Civil rights and obligations — Constitu- tional law, Cout. Cas. 343. See Constitutional Law. 2. Racing upon ice in public harbour — In- truder upon track — Negligence, xxxviii., 226. See Raoe-Coukse. PUBLIC HEALTH. Construction of statute— "Quebec Public Health Act"—R. S. Q. 1909, art. 3913 — In- spection of food — Duty of health officers — Quality of food — Condemnation — Seizure — Notice — Effect of action by health officers- — Controlling power of courts — Evidence — In- junction — Appeal — Jurisdiction — Question in controversy .'\ — Per Fitzpatrick, C.J. — In the Province of Quebec, in order to consti- tute a valid seizure of movable property there must be something done by competent authority which has the effect of disposses- sing the person proceeded against of the pro- PUBLIC INTEREST. 1. Dedication of lands for highway — Open- ing of street — Construction of agreement, xlix., 621. See Municipal Corpoeation. 2. Municipal corporation — Powers of council — Highways — Exclusive privilege — Necessity of by-law — Validity of contract — Right of action — Status of plaintiff — Share- holder in joint stock company — Ratepayer — • Special injury— Public interest — Prosecu- tion by Attorney-General — Practice — Art. 978 C. P. Q. Robertson v. Montreal, lii., 30. See Municipal Corporation. PUBLIC LAAV. Title to lands — Grant from Crown — Im- plied reservations — Description — Navigaible waters — Floatable streams — Inlet of navi- gable river — Crown domain — Construction of deed — Possession — Estoppel — Evidence Waiver, xxxiv., 603. See Rivers and Streams. 945 PUBLIC POLICY. 946 PUBLIC OFFICER. 1. Notary public — Principal and agent — Notice of action — Art. 88 C. P. Q.] — Where the defendant has not been sued In an action for damages by reason of an act done in the exercise of a public function or duty, the provision of article 88 C. P. Q., as to notice of action against a public officer, has no application. Dufresne V. Desforges, xlvii., 382. And see Practice. 2. Negligence — Navigation of inland waters — Collision — Government ships and vessels — "Public work" — "The Exchequer Court Act," s. 16 — Construction of statute — Right of action, xxxviii., 126. See Negligence. 3. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — Subse- quent issue of placer mining licenses — Da/m- ages — Pleading and practice — Statement of claim, — Demurrer — Cause of action, xxxviii., 542. See Mines and Mining. 4. Taxing costs to Crown — Fees to coun- sel and solicitor — Salaried officer represent- ing the Crown, xxxix., 621. See Costs. 5. Mines and mining — Hydraulic regula- tions — Application for mining location — Duties imposed on Minister of the Interior — Status of applicant — Vested rights — Con- tract binding on the Crown, xl., 258. See Mines and Mining. 6. Constitutional law — Municipal taxation — Official of Dominion 0-overnment — Taxa- tion on income — B. N. A. Act, 1867, ss. 91, 92, xl., 597. See Constitutional Law. And see Crown. PUBLIC ORDER. 1. Debtor and creditor— Agreement for ex- tension of time — Preference — Advantage to credito) — Security for debt — Conflict of laws — Lex loci.'] — Where a debtor obtains the assent in writing of his creditors to an ex- tension of time for payment of their re- spective debts, upon an undertaking that be will not "give a preference" without their consent, a prior secret arrangement by which one of such creditors obtains security and more favourable terras of payment than that provided in the agreement is void as a fraud against the other creditors and as against public order. — The debtor carried on his business in Toronto where the deed grant- ing the extension of time was drawn and executed. H., a New York creditor, ob- tained security by means of the debtor's promissory notes, drawn up and made pay- able in Toronto and indorsed by the de- fendant, residing in Montreal. The action on the notes was brought, in Quebec, against the indorser. — Held, per Idington and Anglin, JJ., that the case should be decided according to the law of Ontario, if there is any difference between it and the Que- bec law on the subject-matter. — Judgment appealed from (Q. R. 25 K. B. 421), af- firmed. Hochberger v. Rittenberg, liv., 480. 2. Custody of deeds — Notarial profession in Quebec — Art. 3665 R. 8. Q. — Attorney vtf, fact — Implied mandate — Evidence — Parol — Commencement of proof in writing — Art. 1233 C. C. —Admissions— Art. 316 C. P. Q. — Practice — Adduction of evidence — Objec- tions to testimony — Rule of public order, XXXV., 14. See Principal and Agent. PUBLIC POLICY. 1. Parent and child — Guardianship — Family arrangement — Public policy.] — "Where a widow, whose husband left no estate, agrees to give up her natural right of guardianship over her daughter and trans- fer the same to the latter's grandfather who, on his part, agrees to educate her, provide for her afterwards and allow as full inter- course as possible between her and her mother, the fact that the arrangement in- cludes an allowance to the mother for her maintenance does not necessarily make it void as against public policy. Idington and Duff, JJ., dissenting. Ghisholm v. GhishoVm, xl., 115. 2. Libel — Privileged publications — Reports of judicial proceedings — Public policy — Pleadings filed in civil actions — Proceedings not in open court.] — The publication of the statements contained in a pleading filed in the course of a civil action, merely because such statements form part of such a plead- ing, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial pro- ceedings. — ^The judgment appealed from (Q. R. 17 K. B. 309), reversing the judgment of the Superior Court (Q. R. 31 S. C. 338) , was affirmed, Girouard, J., dissenting.. Gazette Printing Go. v. Shallow, xli., 339. 3. Municipal corporation — Member of council — Interest in municipal contract — Legal maxim — Money received under pro- hibited contract — Recovery of funds — Right of action — Statute — {Que.) 58 Vict. c. 42, ss. 1, 2, 11— Arts. 989, 10Jf7 G. C.]—A con- tractor with a municipality applied to the mayor thereof for financial assistance in carrying out works he had agreed to con- struct and obtained the necessary financial aid from him upon an understanding that the mayor should receive a bonus in con- sideration of the financial assistance to be rendered. On the completion of the works, but prior to the dates when the corpora- tion was obliged to make payment, a prom- issory note was obtained from the munici- pality which was indorsed by the contrac- tor, delivered to the mayor as collateral security for the amount owing to him, and, by the latter, was discounted at a bank. The mayor retained the proceeds of the note for the purpose of satisfying the amount of the bonus promised to him and some other charges which he claimed in connec- tion with his services in financing the con- 947 PUBLIC AVOKK. 948 tra.ctor. In an action by the contractor to recover the funds. — Held, that the arrange- ment so made had the effect of giving the mayor an interest in the contract incom- patible with his duty as a member of the municipal council, contrary to public policy and in violation of the provisions of ss. 1 and 2 of the Quebec statute, 58 Vict. c. 42, and that he was not entitled to retain the moneys. (Leave to appeal to Privy Coun- cil granted, 7th July, 1914.) Lapointe V. Messier, xlix., 271. And see Municipal Corpokation. 7. Emtradition — Prohibition — Appeal — Supreme Court Act — Construction of statute — Public policy — Criminal proceedings, xxxvi., 247. See EXTEADITION. 8. Judicial sale of railways — Interested bidder — Disqualification as purchaser — Counsel and solicitors — Art. ii84 C. O. — Construction of statute — Review by appel- late court — Discretionary order — ^ & 5 Edw. VII., c. 158 (D.y, xxxvii., 303. See Kailways. 4. Title to land — Conveyance in fraud of creditor — Husband and wife—Advancement — Trustee — Equitable relief — Restitution — Evidence — Statute of Frauds.'\ — Lands which, at the time of the transaction, would be exempted from seizure and sale under execution by the Alberta "Exemptions Ordinance" were purchased by S. and, with the intention oif protecting them from pur- suit by Ms judgment creditor, he caused them to be conveyed to his wife, on a parol agreement with her that the title should remain in her nanie until the judgment debt was satisfied. The debt was subse- quently paid by iS. and he brought suit against his wife for a declaration that she held the lands in trust for him and for reconveyance. — Seld per curiam. — That the court should not grant relief to the hus- band against the consequence of his unlaw- ful attempt to delay and hinder his creditor, although the illegal purpose had not been carried out. Mucklestone v. Brown (6 Ves. 68) ; Taylor v. Chester (L. R. 4 Q. B. 309) ; followed. Rochefoucauld v. B.ousted ( (1897), 1 Ch. 196), referred to. Judgment ap- pealed from (8 Alta. L. E.. 417), reversed, Anglin, J., dissenting ,on the ground that the conveyance oif exempted lands could not prejudice the rights of creditors and, al- though it had been made with fraudulent intent, it was not fraudulent as against them. Mundell v. Tinkis (6 O. R. 625) ; Mathews v. Feaver (1 Cox 278) ; Rider v. Kidder (10 Ves. 360) ; Day v. Day (17 Ont. App. R. 157) ; Symes v. Hughes (L. R. 9 Eq. 475), and Taylor v. Bowers (1 Q. B. T>. 291), referred to.— Per Duff, J.— In the absence of proof that bis creditor had not been prejudiced in consequence of the conveyance being taken in the name of his wife, the plaintiff was not entitled to relief. Scheiiermaii v. Scheuerman, lii., 625. 5. Construction of railway — Injunction — Interested party — Public corporations — Franchises in public interest — Lapse of chartered powers — "Railway" or "Tramway"' — Agreement as to local territory — Invalid contract — Public policy — Dominion Railway Act — Work for general advantage of Can- ada — Quebec Railway Act — Municipal Code — Limitation of powers, xxxv., 48. See Railways. 6. Special leave to appeal — "Railway Act, 1903" — Order of Board of Railway Commis- sioners — Use of public streets — Removal of tracks — ■Constitutional law — Property and civil rights — .Jurisdiction of Board — Im- posing terms — Practice, xxxv., 478. See Railways. 9. Contract — Restraint of trade — Com- bination — Conspiracy — Construction of statute — "Criminal Code," s. 498 — Words and phrases, "unduly" preventing competi- tion, etc., xlvi., 1. See Contract. PUBLIC BOAD. See Highway. PUBLIC STREETS. Special leave to appeal — "Railway Act, 1903" — Order of Board of Railway Com- missioners — Use of public streets — Removal of tracks — Constitutional law — Property and civil rights — Jurisdiction of Board — Impos- ing terms — Practice, xxxv., 478. See Railways. And see Highway — Municipal Cokpoba- TION. PUBLIC WAY. See Highway. Peters v. Sinclair, xlviii., 57. PUBLIC -WORK. 1. Lands injuriously affected — Closing highway — Inconvenient substitute — Right of action.] — The owner of land is not entitled to compensation where, by construction of a public work, he is deprived of a mode of reaching an adjoining district and obliged to use a substituted route which is less con- venient. — The fact that the substituted route subjects the owner at times to delay does not give him a claim to be compensated as it arises from the subsequent use of the work and not its construction and is an in- convenience common to the public generally. — The general depreciation of property be- cause of the vicinage of a public work does not give rise to a claim by any particular owner. — AYhere there is a remedy by indict- ment mere inconvenience to an individual or loss of trade or business is not the sub- ject of compensation. Judgment appealed from (8 Ex. C. R. 245), reversed. The King v. MacArthur, xxxiv., 570. 949 PUBLIC WOEK. 950 2. Lease — Canal — Water-power — Im- provements on canal — Temporary stoppage of power — Compensation — Total stoppage — Measure of damages — Loss of profits.'] — ■ A mill was operated by water-power taken from the surplus water of the Galops Canal under a lease from the Crown. The lease provided that in ease of a temporary stop- page in the supply caused by repairs or alterations in the canal system the lessee would not be entitled to compensation unless the same continued for six months, and then only to an abatement of rent. — Beld, Iding- ton, J., dubitonte, that a stoppage of the supply for two whole seasons necessarily and bond fide caused by alterations in the system was a temporary stoppage under this provision. — The lease also provided that in case the flow of surplus water should at any time be required for the use of the canal or any public purpose whatever, the Crown could, on giving notice to the lessee, cancel the lease, in which case the lessee should be entitled to be paid the value of all the buildings and fixtures thereon be- longing to him with ten per cent, added thereto. The Crown unwatered the canal in order, to execute works for its enlarge- ment and improvement, contemplating at the time only a temporary stoppage of the sup- ply of water to the lessee, but later changes were made in the proposed work which caused a total stoppage, and the lessee, by petition or right, claimed damages. — Held, Girouard, J., dissenting, that as the Crown had not given notice of its intention to cancel the lease the lessee was not entitled to the damages provided for in case of can- cellation. — Held, also, that the lessee was not entitled to damages for loss of profits during the time his mill was idle owing to the water being out of the canal. Judg- ment of the Exchequer Court (9 Ex. C. R. 287), aifirmed, Girouard and Idington, JJ., dissenting. Beach v. The King, xxxvii., 259. 3. Negligence — Navigation of inland waters — Collision — Government ships and vessels — "Public work" — "The Exchequer Court Act," s. IS — Construction of statute — Right of action.] — His Majesty's steam- tug "Champlain," while navigating the Kiver St. Lawrence, at some distance from a place where dredging was being carried on by the Government of Canada, and engaged in tow- ing an empty mud-scow, owned by the Gov- ernment, from the dumping ground back to the place where the dredging was being done, came in collision with the suppliant's steam barge, which was also navigating the river, and the barge sustained injuries. — Held, affirming the judgment of the Ex- chequer Court of Canada, that there could be no recovery against the Crown for dam- ages suffered in consequence of negligence of its oflicers or servants, as the injury bad not been sustained on a public work within the meaning of the sixteenth section of the "Exchequer Court Act." Chambers v. White- haven Harbour Commissioners ( [1899] 2 Q. B. 132) ; Hall V. Snowden, Hubbard A Co. ([1899] 2 Q. B. 136) ; Lowth v. Ib- botson ([1899] 1 Q. B. 1(X)3) ; Farnell v. Bowman (12 App. Cas 643), and The At- tomey-Cfeneral of the Straits Settlements v. Weymss (13 App. Cas. 192), referred to. Paul v. The King, xxxviii., 126. 4. Contract — Change in plans and specifi- cations — Waiver by order in council — Powers of executive — Construction of statute — Directory and imperative clauses — Words and phrases — "Stipulations" — Exchequer Court Act, s. SS — Extra works — Engineer's certificate — Instructions in writing — Schedule of prices — Compensation at in- creased rates — Damages — Right of action — Quantum msruit.]— The suppliants, appel- lants, were contractors with the Crown for the widening and deepening of a canal and, by their petition of right, contended that there were such changes from the plans and specifications and in the manner in which the works were obliged to be executed as made the provisions of their contract inap- plicable and that they were, consequently, entitled to recdver upon a quantum meruit. In order to afford relief, an order in coun- cil was passed waiving certain conditions, provisoes and stipulations contained in the contract. By the judgment appealed from the judge of the Exchequer Court held (10 Ex. C. R. 248), that there had been no such changes as would entitle the contractors to recover on the quantum meruit, as in the case of Bush v. The Trustees of the Town and Harbour of Whitehaven (52 J. P. 392 ; 2 Hudson on Building Contracts (2nd ed.) 121) ; that the words "shaU decide in ac- cordance with the stipulations in such con- tract" in the thirty-third section of "The Exchequer Court Act" might be treated as directory only and effect given to the waiver in respect to the absence of written direc- tions or certificates by the engineer in regard to works done, but that the remaining clauses of the section were imperative, and there could be no valid waiver whereby a larger sum than the amount stiptilated in the con- tract could be recovered, e.g., on prices for the classes of work, so as to give the con- tractors a legal claim for higher rates of compensation without a new agreement under proper authority and for good con- sideraiion. On appeal to the Supreme Court of Canada : — Held, per Girouard, Davies and Maclennan, JJ., that the decision of the judge of the Exchequer Court was correct. — Per Idington and Duff, JJ. — ^That the word "stipulations" in the first part of the sec- tion referred to, should be construed as hav- ing relation entirely to the second part of the section and as applying to the rates of compensation fixed by the contract ; that, on either construction, the result would be the same in so far as the circumstances of the case were concerned; that it did not warrant an implication that the executive could, without proper authority, exceed its powers in relation to a fully executed contract or confer the power to dispense with the requirements of the statute, and that, consequently, there could not be a re- covery upon quantum meruit. Pigott & Ingles v. The King, xxxviii., 501. 5. Government railway — Operation over other lines — Agreement for running rights — Extensions and branches— Construction of statute — "Government Railways Act" — R. 8 C, 1906, c. SG, s. 80 — "Exchequer Court ict"'—R. 8. C, 1906, c. 140, s. 20 (c) .]— The agreement between the Government of Canada and the Grand Trunk Railway Com- pany, made under the provisions of the 951 PUBLIC WOEK. 952 Dominion statute, 43 Vict., c. 8, giving the Government running rights and power over a portion of the Grand Trunk Railway, from Levis to C'haudi6re, between two sec- tions of the Intercolonial Railway, con- stitutes that portion of the Grand Trunk Railway a part of the Intercolonial Railway under the provision of "The Government Railways Act," as amended by 54 & 55 Vict., c. 50 (D.), and, consequently, a public work within the meaning of the "Ex- chequer Court Act," 50 & 51 Vict., c. 16, s. 16 (c), (D.) ; [R. S. C. 1906, c. 140, s, 20 (c)]. (11 Ex. C. IR. 252, affirmed). (Leave to appeal was refused by the Privy Council, 18th July, 1908.) The King v. Lafrangois, xl., 431. 6. Grown — 'Negligence — Injury on public work — Government railway — Fire from engine— B. S. il906'[ c. HO, s. 20(c) — Words and phrases.'\ — ^The words "on a public work" in sub-sec. (c) of R. S. [19061 c. 140, s. 20 (The Exchequer Court Act), are descriptive of locality and to make the Crown liable for injury to property under that sub-section, such property must be situated on the work when injured. Gham- berlin v. The King, xlii., 350. 7. Negligence — Injury on public work — ■ "Public Works Health Act" — 'Gonstruction of statute— R. S. G. 1906, c. 135, s. S — Regulations by order-in-council — Breach of statutory duty — Action — Misjoinder.'] — The provisions of s. 3 of the "Public Works Health Act," R. S. C, 1906, c. 135, do not impose on a Government Department or a company constructing a public work the obligation to provide hospitals and surgical attendance for the treatment of personal injuries sus- tained by employees, whether of themselves or of their contractors or sub-contractors, in the construction of such work. Oramd Trunk Pacific By. Go. v. White, xliii., 627. 8. Work dehors contract — Acceptance by Grown — Payment — Fair value.] — W. was contractor with the Crown for constructing a car and locomotive repair plant at Monc- ton, N.B., and was subject to the orders of the Government engineer. By order of the engineer and with no contract in writing therefor he constructed sewers and a water system in connection with said works, and on completion of his contract the Crown accepted the additional work and agreed to pay its fair value, but not the amount claimed, which was deemed excessive. The Department of Railways referred the claim to the Exchequer Court and, by consent, it was referred to the Registrar of the court to have the damages assessed, the order of reference providing that "the amount to be ascertained shall be the fair value or price thereof allowed on a quantum meruit." The Registrar fixed the amount at $53,205, as the fair value of the work reasonably exe- cuted on a somewhat different plan. The judge of the Exchequer Court added $39,000 to this amount, holding that the Crown had admitted the authority of the engineer to order the work to be done, and that W. was entitled to the actual cost plus a percent- age for profit. On appeal by the Crown : — Held, Anglin, J., dissenting, that the judg- ment appealed against (13 Ex. O. R. 246), was not warranted ; that the Crown had not admitted the authority of the engineer, but expressly denied it by pleadings and other- wise ; that aU W. was entitled to be paid was the fair value of the work to the Crown and the amount allowed by the referee sub- stantially represented such value. (Leave to appeal to Privy Council refused, 11th July, 1911). The King v, Wallberg, xliv., 208. 9. Damage to adjacent lands — Negligence — Liability of Crown — "Exchequer Court Act," s. 20 — Litigious rights — Bar to action — "Rideau Canal Act," 8 0eo. IV., c. 1 (U.C.) — Limitation of actions.] — The Orown is not liable, under s. 20, s.-s. (o) of the "Exchequer Court Act" (R. S. C, [1906] c. 140), for injury to property by negligence of its servants unless the property is on a public work when injured. Ohamber- lin V. The King (42 Can. S. C. R. 350), and Paul v. The King (38 Can. S. O. R. 126), followed. — Per Fitzpatrick, C.J. — Where property is purchased for the purpose of enforcing a claim against the Crown for injury thereto, such purpose constitutes a bar to the prosecution of the claim. — Per Brodeur, J. — Section 26 of the "Rideau Canal Act," 8 Geo. IV., e. 1 (U.C), provid- ing that any plaint brought against any person or persons for anything done in pur- suance of said Act must be commenced within six months next after the act com- mitted, applies to proceedings against the Crown though the Crown was not men- tioned and no claim against it founded on tort could then be prosecuted. Idington, J., contra. Anglin, J., dubitante. Olmstead v. The King, liii., 450. 10. Incorporation of company — Construc- tion of canal — Governor An-Gouncil — Ap- proval of pJans — Discretion — Refusal to ap- prove — Right of action — Grown.] — The statute 61 Vict, c. 107 (D.) incorporated . a company for the purpose of constructing and operating a canal between the St. Lawrence and Richelieu Rivers. Section 22 provided that before the work of constructing the canal was begun, the plans, etc., were to be approved by the Governor-in-Council. — Held, aifirming the judgment appealed from (16 Ex. C. R. 125), Fitzpatrick, C.J. and Brod- eur, J., dissenting, that the rrfusal of the Govemor-in-Council to approve plans sub- mitted did not give the company a claim for damages which could be enforced against the Crown. — Per Duff, J., that the refusal to consider the plans did not give birth to a claim for which a petition of right lies. — Held, per Fitzpatrick, C.J., and Anglin and Brodeur, JJ., that the Govemor-in-0)uncll had no discretionary power to refuse ap- proval of the plans on the ground that tte undertaking authorized by Parliament was opposed to public policy. Lake Champlain & St. Laicrence Ship Canal Go. v. The King, liv., 461. 11. Negligence — Employee of Crown — Common employment — Defence by Grown — Workmen's Compensation Act, xxxvi., 462. See Nexsligence. 12. Expropriation of land — Payment Market value — Potential value — Evidence xxxviii., 149. See ExPEOPEiATiON. 953 QUEBEC NOETH SHOEE TUENPIKE EOAD TEUST. 954 13. Navigation^— Trent canal crossing — Swing bridge — Cost of construction — Main- tenance — Order in council, xxxviii., 211. See Railwats. 14. Negligence of fellow servant — Opera- tion of railway — Defective switch — Tort — Liability of Grown — Right of action — Ex- chequer Court Act, s. 16 (c) — "Lord Camp- lelVs Act"— Art. 1056 C. C, xl., 229. See Negligence. 15. Negligence — Injury on public work — "Public Works Health Act" — Construction of statute — Regulations by Order-in-Council — Breach of statutory duty — Action — Mis- joinder. G. T. P. Ry. Go. v. White, xliii., 627. See Stattttb. 16. Expropriation of land — Water lots — Eiepectation of enhanced value — Grown grant — Statutory authority, Gunard v. The King, xliii., 88. See ExPROPEiATiON. 17. Expropriation — Eminent domain — Public work — Abandonment — Revesting of land taken — Compensation — Estimating damages — Construction of statute — Jurisdic- tion of Exchequer Court — "National Trans- continental Railway Act" — "Railway Act," R. 8. C. 1906, c. 37— "Exchequer Court Act" — "Expropriation Act" — "Railways and Canals Act." Gibb v. The King, lii., 402. See EXPROPEIATION. 18. Damage to adjacent lands — NegU-' gence — Liability of Crown — "Exchequer Court Act," s. 20 — Litigious rights — Bar to action — "Rideau Canal Act," 8 Geo. IV., c. 1 (V.C.) — Limitation of actions. OVmstead V. The King, liii., 450. See Ceown. 19. Injury to property "on public work" — Negligence — Liability of Crown. Pigott V. The King, liii., 626. See Ceown. PUBLISHERS. Contract — Literary work — Publisher and author — Obligation to publish, xlv., 95. See CONTEACT. QUANTUM MERUIT. 1. Public work — Contract — Change in plans and specifications — Waiver by order in council — Powers of executive — Oonstruc- tion of statute — Directory and imperative clauses — Words and phrases — "Stipulations" — Exchequer Court Act. s. 33 — Extra works — Engineer's certificate — Instructions in writing — Schedule of prices — Compensation at increased rate — Damages — Right of ac- tion — Quantum meruit, xxxviii., 501. See Public Work. 2. Public work — Work dehors contract — Acceptance by Crown — Payment — Fair value, xliv., 208. See Public Work. 3. Builders and contractors — Breach of contract — Action for quantum meruit — Re- scission — Cross-action for damages — Ap- propriate relief — Waiver. Favreau et al. v. Rochon, xlvi., 647. 4. Company law — Agreement by directors — Onerous contract — Non-disclosure to shareholders — Breach of contract — Damages — Settlement of accounts — Appeal — Jurisdic- tion — Reference to master — Final judgment. Denman v. Clover Bar Coal Co., xlviii., 318. See CoMPANT Law. 5. Broken — Commission — General employ- ment — Variation of written contract — Prin- cipal and agent — Interference by principal. xlix., 1. See Broker. "QUEBEC ACT, 1774." The laws relating to cliamperty were in- troduced into Lower Canada by the "Quebec Act, 1774," as part of the criminal law of England and as a law of public order the principles of which and the reasons for which apply as well to the Province of Quebec as to England and the other provinces of the Dominion of Canada. Price v. Mercier (18 Can. S. 0. R. 303) referred to. (Leave to appeal to Privy Council refused.) Meloche V. Deguire, xxxiv., 24. And see Champeety. "QUEBEC LICENSE LAAV." Appeal — Jurisdiction — "Supreme Court Act," ss. 36, 37, 46 — Judge in chambers — Originating petition — Arts. 71, 72, 875, 876 C. P. Q. — Liquor laws — Property in license — Agreement — Ownership in persons other than holder — Invalidity of contract — Public policy. Turgeon v. St. Charles, xlviii., 473. See Liquor Laws. QUEBEC NORTH SHORE TURN- PIKE ROAD TRUST. 1. Crovn — Breach of trust — Purchase of debentures out of Common School Fund — Knowledge of misapplication of moneys — Payment of interest — Statutory prohibition — Evasion of statute — Estoppel against the Grown — Action — Adding parties — Practice.^ — In an action by the Crown against the Quebec North Shore Turnpike Roarl Trus- tees to recover interest upon debentures pur- chased from them by the Government of the late Province of Canada (with trust funds held by them belonging to the Common School Fund), the defendants pleaded that the Crown was estopped from recovery in- asmuch as, at the time of their purchase, the 955 EAILWAYS. 956 adi'isors of the Crown were aware that these debentures were being issued in breach of a trust and with the intention of misapplying the proceeds towards payment of interest upon other debentures due by them in viola- tion of a statutory prohibition. — Held, af- firming the judgment appealed from (8 Ex. C. R. 39l0) that, as there was statutory au- thority for the issue of the debentures in question, knowledge of any such ibreach of trust or misapplication by the advisers of the Crown could not be set up as a defence to the action. Quebec North Shore Turnpike Road Trustees v. The King, xxxviii., 62. 2. Breach of trust — Interest on bonds — Unlawful acts by Grown officers — Ultra vires — Withholding interest from Grown — Neces- sity of impleading other interested parties — Practice, Gout. Cas. 316. See Pbaotioe. QUEBEC SOUTHERN RAILWAY. See Rail vir ATS. QUORUM. Appeals to Court of King's Bench — Art. IZ-ffl C!- P- Q- — Practice — Quorum of judges — Judgment pronounced in absence of dis- qualified judge — Jurisdiction.] — Art. 1241 C. P. Q. permits four judges of the Court of King's Bench to give judgment in a cause heard before five, when the remaining judge, after hearing the case argued, recused him- self as disqualified. Davies and Nesbitt, JJ., contra. Angers v. Mutual Reserve Fund Life Association, xxxv., 330. QUO AVARBANTO. Appeal — Action by ratepayer — Municipal corporation — Payment of money — Statutory procedure — Matter of form — "Montreal Gity Charter" — Construction of statute. Larin v. Lopointe, xlii., 521. See Municipal Coepokation. RACE-COURSE. 1. Negligence — Trespass — Horse racing — Intruder upon race-track — Carelessness.] — After the first heat of a trotting match in which N. had been a competitor he was seated in his sleigb and walking his horse upon his proper side of one of the tracks, laid out by the ploughing away of the snow on the ice of a public harbour, while waiting to be called for the next heat. M., who had not ibeen a competitor in that race, came along the same track, from an opposite direc- tion to that in which N. was going, driving his vehicle at excessive speed and, in at- tempting to pass in a narrow space between the ridge formed by the snow and N.'s sleigh, collided with it, causing injuries to N. and damaging his sleigh and harness. — Held, af- fii'raing the judgment appealed from (39 N. S. Rep. 133) that even if M. was lawfully upon the track in question he was respon- sible for damages as the accident was solely attributable to his improvident carelessness and want of judgment. Manning v. Naas, xxxviii., 226. 2. Criminal laio- — Disorderly house — Com- mon betting-house — Place for betting — Bet- ting booth — Race-course of incorporated as- sociation — Grim. Code, 1892, ss. 197, SO4 — Crim. Code, 1906, ss. 227, 235.] — A peram- bulating booth used on the race-course of an incorporated racing association for the pur- pose of making 'bets is an "ofBce" or "place" used for betting between persons resorting thereto as defined in s. 197 of the Criminal Code, 1892 (Crim. Code, 1906, s. 227).— Sub-section 2 of s. 204 of the former Code (now s. 235) wliieh exempts from the pro- visions of the main section (dealing with the recording or registering of bets, etc. ) , bets made on the race-course of an incorporated association does not apply to the offence of keeping a comidon betting-house. Girouard and Davies, JJ., dissenting. — Judgment of the Court of Appeal (12 Ont. L. R. 615) af- firmed, Girouard and Davies, JJ., dissent- ing. Saunders v. The King, xxxviii., 382. RAILAVAY COMMISSIONERS. See Railways. RAILWrAY COMMITTEE OF THE PRIVY COUNCIL. See Railways. RAILTVAYS. ]. Boaed of Railway Commissioners foe Canada, 1-38. 2. Caeeting Goods and Passengers, 39- 45. 3. Consteuction, 46-57. 4. Contracts, 58-60. 5. Expropriation, 61-77. 6. Government Railways, 78-83. 7. Legislative Jurisdiction, 84-85. 8. Municipal Aid, By-laws, Highways, Bbidges, Etc., 86-92. 9. Negligent Operation, Etc., 93-149. 10. Subsidies, 150-152. 11. Taxation, 153-154. 12. Other JIattees, 155-160. 1. Board of Railway Commissioners foe Canada. 1. Appeal — Special leave — "Railway Act, 1903" — Order of Board of Railuoa/y Com- missioners — Use of public streets — Removal of tracks — Constitutional law — Property and dvil rights — Jurisdiction of board- — Impos- ing terms.] — Where the judge entertained 957 EAILWAYS. 955' doubt as to the jurisdiction of the Board of Railway Commissioners for Canada to make the order complained of and the questions raised were of public importance, special leave for an appeal was granted, on terms, under the provisions of s. 44 (3) of "The RaOway Act, 1903." Montreal Street By. Co. V. Montreal Terminal By. Co., xxxv., 478. 2. Branch lines — Canadian Pacific Bail- way Co.'s charter — ^4 Vict. c. 1 (I).), and schedules — Construction of contract — lAmita- tinn, of time — Interpretation of terms — "Lay cut," ''Construct" ■'Acquire" — "Territory of Dominion" — Hansard debates — Con- struction of statute — "The Bailway Act, li)03."] — The charter of the Canadian I^aci- fic Railway Company (44 Vict. c. 1 (D.)) and schedules thereto appended, impose limi- tations neither as to time nor point of de- parture in respect of the construction of branch lines ; — they may he constructed from any point on the main line of the Canadian Pacific Railway between Callender Station and the Pacific seaboard, subject merely to the existing regulations as to approval of location, plans, etc., and without the neces- sity of any further legislation. — On a refer- ence concerning an application to the Board of Railway Commissioners for Canada for the approval of deviations from plans of a proposed branch line under s. 43 of "The Railway Act, 1903," it is competent for ob- jections as to the expiration of limitation of time to be taken by the Board of its own motion, or by any interested party. In re Branch Lines, Canadian Pacific Railway Co., xxxvi., 42'. 3. "Bailway Act, 1903," ss. 23, 184— Con- struction, etc., of street railway or tramway — Removal of tracks, etc. — Board of Bailway Commissioners for Canada — Jurisdiction — Condition precedent — Use of highways in cities and towns — Consent T>y municipal au- thority — Approval of hy-law — Quebec Muni- cipal Code, arts. 4S4, ^SJ.] — In the case of a street railway or tramway or of any rail- way to be operated as such upon the high- ways of any c-ity or incorporated town, the consent of the municipal authority required by s. 184 of the "Railway Act, 1903," must be by a valid by-law approved and sanctioned in the manner provided by the provincial municipal law, and, in the absence of evi- dence of such consent having been so ob- tained, the Board of Railway Commissioners for Canada have no jurisdiction to enforce an order i]i respect to the construction and operation of any such railway. The order appealed from was reversed and set aside, the Chief Justice and Girouard, J., dissent- ing. Montreal Street Bailway Co. v. Mont- real Terminal Bailway Co., xxxvi., 369. 4. Farm crossing — Jurisdiction of Board of Bailway Commissioners for Canada — Sta- tutory contract — Bailway Glauses Act, 1S51 — Grand Trunk Bailway Act, 1S52 — "Bail- way, Act, 18SS" — "Railway Act, 1908" — Appeal — Controversy involved — - Jurisdic- tion.] — Orders directing the establishment of farm crossings over railways subject to "The Railway Act, 1903," are exclusively within the jurisdiction of the Board of Rail- way Commissioners for Canada. — The right claimed by the plaintiff's action, instituted in 1904, to have a farm crossing established and maintained by the railway companj', cannot be enforced under the provisions of the Act, 16 Vict. c. 37 (Can.) incorporat- ing the Grand Trunk Railway of Canada. Judgment appealed from reversed, Idington, J., dissenting in regard to damages and costs. Chrand Trunk Bailway Co. v. Perrault, xxxvi., 671. 5. Constitutional law — Parliament — Power to legislate — "Bailway Act," ISSS, ss. 187, 188 — Protection of crossings — Party interested — Railway committee — Board of Railiray Commissioners — "Railway Art. i903."]— Sections 187 and 188 of "The RaU- way Act, 1888," empowering the Railway Committee of the Privy Council to order any crossing over a highway of a railway subject to its jurisdiction to be protected by gates or otherwise, are ititra vires of the Parlia- ment of Canada. Idington, J., dissenting. — ( Sections 186 and 187 of "The Railway Act, 1903," confer similar powers on the Board of Railway Commissioners.) These sections also authorize the committee to apportion the cost of providing and maintaining such pro- tection between the railway company and "any person interested." — Held, Idington, J., dissenting, that the municipality in whicli the highway crossed by the railway is situ- ate is a "person interested" under said sec- tions. City of Toronto V. Or and Trunk By. Co., xxxvii., 232. 6. Board of Bailway Commissioners — Jur- isdiction — Construction of subway — Ap- portionment of cost — Person interested or affected — Street railway — Agreement with municipality.] — The power of the Board of Railway Commissioners, under s. 186 of the "Railway Act, 1903," to order a highway to be carried over or under a railway is not restricted to the case of opening up a new highway, but may be exercised in re- spect to one already in existence. — The ap- plication for such order may be made by the municipality as well as by the railway com- pany. — The Board, on application by the City of Ottawa, ordered a subway to be made under the track of the Canada Atlantic Rail- way Co. where it crosses Bank Street, the cost to be apportioned among the city, the C. A. Ry. Co. and the Ottawa Electric Ry. Co. By an agreement between the Electric Ry. Co! and the city the company was given the right to run its cars along Bank Street and over the railway crossing, paying there- for a specific sum per mile. The company appealed from that portion of the order, making them contribute to the cost of the subway, contending that the city was obliged to furnish them with a street over which to run their cars and they could not be sub- jected to greater burdens than those im- posed by the agreement. — Held, that the Electric Ry. Co. was a company "interested or affected" in or by the said work within the meaning of s. 47 of the said Bailway Act, and could properly be ordered to con- tribute to the cost thereof. — Held, further, that there was nothing in the agreement be- tween said company and the city to prevent the Board making said order or to alter the liability of the company so to contribute. Ot- tawa Electric Ry. Co. v. City of Ottaua and Canada Atlantic By. Co., xxxvii., 354. 959 EAILWAYS. 960 7. Appeal from Board of Railway Com- missioners — Want of jurisdiction — Railway Act, 1003.] — The judge entertained some doubt as to the jurisdiction of the Board of Railway Commissioners for Canada, and, consequently, granted leave for an appeal. Cf. The Montreal Street Railway Co. v. The Montreal TermUval Railway Co., [No. 1 antel (35 Can. S. C. R. 478.) Canadian Northern Railway Co. v. T. D. Roiinson & Hon, Cout. Gas. 394. 8. Board of Railway Commissioners — Jurisdiction — • Appeal to Supreme Gourt.'i — The Board of Railway Commissioners granted an application of the James Bay Railway Co. for leave to carry their line un- der the track of the G. T. Ry. Co. but, at the request of the latter, imposed the condi- tion that the masonry work of such under crossing should be sufficient to allow of the construction of an additional track on the line of the G. T. Ry. Co. No evidence was given that the latter company intended to lay an additional track in the near future or at any time. The James Bay Ry. Co., by leave of a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms, contending that the same was beyond the jurisdiction of the Board. — Held, that the Board had jurisdic- tion to impose said terms. — Held, per Sedge- wick, Davies and Maclennan, JJ., that the question before the court was rather one of law than of jurisdiction and should have come up on appeal by leave of the Board or been carried before the Governor-General in Council. James Bay Ry. Go. v. Q-rand Trunk Ry. Co., xxxvii., 372. 9. Board of Railway Commissioners — Jwrisdiotion — Traffic accommodation — Restoring connections — 3 Edw. VII. c. 58, ss. 176, 214, 253.] — On an application to the Board of Railway Commissioners for Can- ada, under the provisions of the "Railway Act, 1903," for a direction that a railway company should replace a siding, where traffic facilities had been formerly provided for the respondents with connections upon their lands, and for other appropriate relief for such purposes : — Held, that, under the circumstances, the Board had jurisdiction to make an order directing the railway com- pany to restore the spur-track facilities for- merly enjoyed by the applicants for the car- riage, despatch and receipt of freight in car- loads over, to and from the line of railway. Canadian Northern Ry. Co. v.. Rohinson, xxxvii., 541. 10. Board of Railway Commissioners — Jurisdiction — Location of railway — Con- sent of municipality — Crossing — Leave of Board — Discretion.] — On 12th August, ]905, the Township of Sandwich West passed a by-law authorizing the W., E., etc., Ry. Co. to construct its line along a named highway in the municipality, but the pow- ers and privileges conferred were not to take effect unless ii formal acceptance thereof should be filed within thirty days from the passing of the by-law. Such acceptance was filed on 12th September, 1905. This was too late and on 20th July, 1907, the council of Sandwich West and that of Sandwich East respectively passed by-laws containing the necessary authority. — In AprU, 1906, the lo- cation of the line of the E. T. Ry. Co. was approved by the Board. In June, 1906, the Board made an order allowing the W. E., etc., Ry. Co. to cross the line of the C. P. Ry. In March, 1907, another order respect- ing said crossing was made and also an or- der approving the location of the W. E| Ry. Co., the municipal consent being ob- tained three months later. — The E. T. Ry. Co', applied to the Board to have the orders of June, 1906, and March 1907, rescinded and for an order requiring the W. E. Ry. Co. to remove its track from the highway at the point where the applicant proposed to cross it, to discontinue its construction at such point, or in the alternative, for an order allowing it to cross the line of the W. E. Ry. Co. on said highway. The ap- plicants claimed to be the senior road and that the W. E. Ry. Co. had never obtained the requisite authority for locating its line. On a case stated to the Supreme Court by the Board. — Held, that the Board had power to refuse to set aside the said orders ; that the by-laws passed in July, 1907, were suffi- cient to legalize the construction of the W. E. Ry. Co.'s line on said highway; and that the Board can now lawfully authorize the latter Co. to maintain and operate its rail- way thereon. — Held, further, that leave of the Board is necessary to enable the E. T. By. Co. to lay its tracks across the railway of the W. E. Ry. Co. on said highway. — Held, also that the Board, in exercise of its discretion, has power by order to aulior- ize the maintenance' and operation of the W. E. Ry. Co. along said highway and to give leave to the E. T. Ry. Co. to cross it and the line of the C P. Ry. near the present crossing and to apportion the cost of main- taining such crossing equally between the two companies instead of imposing two-thirds thereof upon the E. T. Ry. Co., as was done by a former order not acted upon ; and to order that if the B. T. Ry. Co. finds it neces- sary in its own interest to have the points of crossing differently placed it should bear the expense of removing the line of the W. E. Ry. Co. to the new point of crossing. (See 7 Can. Ry. Gas. 109). Essese Termi- nal Ry. Co. v. Windsor & Essex & Lake Shore Rapid Ry. Co., xl., 620. 11. Board of Railway Commissioners — Jurisdiction — Railway crossing — Gontri- hution to cost — Party interested — Municipal- ity — Distance from work.] — A municipality may be a "party interested" in works for the protection of a railway crossing over a high- way though such works are neither within or immediately adjoining its bounds and the Board of Railway Commissioners has juris- diction to order it to pay a portion of the cost of such work. County of Garleton v. City of Ottawa, xli., 552. 12. Fencing — Vninclosed lands — Juris- diction of Board of Railway Commissioners — Construction of statute — "The Railway Act," R. S. C. 1906, c. 37, ss. SO, 25Jf.]-— Under the provisions of "The Railway Act" the Board of Railway Commissioners for Canada does not possess authority to make a general order requiring all railways sub- ject to its jurisdiction to erect and maintain fences on the sides of their railway lines 961 RAILWAYS. 962 where they pass through lands which are not ijjiclosed and either settled or improved ; it can do so only after the special circumstances in respect of some defined locality have been investigated and the necessity of such fenc- ing in that locality determined according to the exigencies of the case. Duff, J., contra. — The "Railway Act" empowers the Board to order that, upon lines of railway not yet completed or open for traflBc or in course of construction, where they pass through in- closed lands, the railway companies should construct and maintain such fences or take such other steps as may be necessary to pre- vent cattl^ and other animals from getting upon the right-of-way. Idington, J., contra. Canadian Northern Railway Co., xlii., 443. 13. Appeal — Limitation of time — Railway Commissioners — Question of jurisdiction — • Leave iy judge — Powers of Board — Com- pleted railway — Order to provide station — • R. S. [1906] c. 37 ss. 26, 151, 158-9, 166-7, and SoS.'i — Except in the case mentioned in Rule 59 there is no limitation of the time within which a judge of the Supreme Court may grant leave to appeal under s. 56 (2) of the "Railway Act," on a question of the jurisdiction of the Board of Railway Com- missioners. — The Board of Railway Commis- sioners has power to order a railway com- pany whose line is completed and in opera- tion to provide a station at any place where it is' required to afford proper accommoda- tion for the' traffic on the road. Idington and Duff, JJ., dissenting. Grand Trunk Railway Co. v. Department of Agriculture, xlii., 557. 14. Jurisdiction of Board of Railway Com- missioners — Deviation of tracks — Separation of grades — "Highway" — Dedication — User — Public way or means of communication — Access to harbour — Navigable waters — Con- struction of statute — "Special Act" — R. S. C. 1906, c. 37, ss. t (11), {S3), 3, 237, 238, 2Uj 56 V. c. 48 (Z).).]— Prior to 1888, the Grand Trunk Railway Company operated a portion of its railway upon the "Elsplan- ade," in the City of Toronto, and, in that year, the Canadian Pacific Railway Com- pany obtained permission from the Domin- ion Government to fill in a part of Toronto Harbour lying south of the "Esplanade" and to lay and operate tracks thereon, which it did. Several city streets abutted on the north side of the "Esplanade," and the gen- eral public passed along the prolongations of these streets, with vehicles and on foot, for the purpose of access to the harbour. In 1892, an agreement was entered into be- tween the city and the two railway compan- ies respecting the removal of the sites of terminal stations, the erection of overhead traffic bridges and the closing or deviation of some of these streets. This agreement was ratified by statutes of the Dominion and provincial legislatures, the Dominion Act (56 Vict. c. 48), providing that the works mentioned in the agreement should be works for the general advantage of Canada. To remove doubts respecting the right of the Canadian Pacific Railway Company to the use of portions of the bed of the harbour on which they had laid their tracks across the prolongations of the streets mentioned, a grant was made to that company by the Do- minion Government of the "use for railway purposes" on and over the fiUed-in areas in- cluded within the lines formed by the pro- duction of the sides of the streets. At a later date the Dominion Government granted these areas to the city in trust to be used as public highways, subject to an agreement respecting the railways, known as the "Old Windmill Line Agreement," and excepting therefrom strips of land 66 feet in width between the southerly ends gf the areas and the harbour, reserved as and for "an allow- ance for a public highway." In June, 1909, the Board of Railway Commissioners, on application by the city, made an order directing that the railway companies should elevate their tracks on and adjoining the "Esplanade" and construct a viaduct there. — Held, Girouard and Duff, JJ., dissenting, that the Board had jurisdiction to make such or3er ; that the street prolongations men- tioned were highways within the meaning, of the "Railway Act" ; that the Act of Par- liament validating the agreement made in 1892 was not a "special Act" within the meaning of "The Railway Act," and did not alter the character of the agreement as a private contract affecting only the parties thereto, and that the Canadian Pacific Rail- way Company, having acquired only a lim- ited right or easement in the fiUed-in land, had not such a title thereto as would de- prive the public of the right to pass over the same as a means of communication be- tween the streets and the harbour. Grand Vrunk Ry. Co. v. City of Toronto, xlii., 613. 15. Tramway — Provincial railway — "Through traffic" — Constitutional law — Legislative jurisdiction — Powers of Board of Railway Commissioners — Construction of statute— R. S. C. (1906) c. 37, s. 3 (6) — "B. N. A. Act," 1867, ss. 91, 92.]— "The Railway Act," R. S. C. (1906) c. 37, does not confer power on the Board of Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or .crosses a railway subject to the authority of the Parliament of Canada. Davies and Anglin, JJ., contra. — Per Fitzpatrick, C.J., and Girouard and Duff, JJ. — The provisions of sub-section (b) of section 8 of the "Rail- way Act" are "uWro vires of the Parliament of Canada. Montreal Street Railway Co. V. City of Montreal, xliii., 197. 16. Board of Railway Commissioners — Consideration of complaints — Evidence — Re- jection — Agreement as to special rates — Un- just discrimination.'] — A company operating subject to Dominion authority, a tramway through several municipalities adjacent to * the city of Montreal, and having connections and traffic arrangements with a provincial tramway in that city, entered into an agree- ment under statutory authority with one of the municipalities whereby, in consideration of special privileges conceded in regard to the use of streets, etc., lower rates of pas- senger fares were granted to persons using the tramway therein, for transportation to and from the city,' than to denizens of the S.C.D.— .31 963 EAILWAYS. 964 adjoining municipality with whicii there was no such agreement. On the hearing of a complaint, alleging unjust discrimination in respect to fares, the Board of Kailway Com- missioners for Canada refused to take the agreement into consideration when tendered in evidence to justify the granting of the special rates and ordered the company, ap- pellants, to furnish the service to persons using the tramway in both municipalities at the same rates of fare. On an appeal, by leave of the Board, in respect of the pro- priety of overlooking the contract, submit- ted as a question of law : — Held, Davies and Anglin, JJ., dissenting, that, as the exist- ence of the contract was one of the elements bearing upon the decision of the question of substantial similarity in circumstances, the Board should iave admitted the evidence so tendered in regard to the agreement in con- sideration of which the special rates of fares had been granted. Montreal Park and Is- land Railway Go. v. City of Montreal, xliii., 256. 17. • Carriers — International through traf- •fio — Reduction of joint rate — Jurisdiction of Board of Railway Commissioners — Practice — Parties — Costs.}- — On a complaint in re- spect to a joint tariff, between the appellant company and the Michigan Central Railroad Company, uiider which a rate of three cents per hundred pounds was charged on pulp- wood in car-lots for carriage from Thorold, in Ontario, to Suspension Bridge, in the State of New York, the Board of Railway Commissioners for Canada decided that the rate should be reduced and ordered the ap- pellants to restore a joint rate which had previously existed of two cents per hundred pounds for carriage of such goods between the points mentioned. The Michigan Cen- tral Railroad Company, over whose railway the goods had to be carried from the point where the appellants' railway made con- nection with it at the international bound- ary to the foreign destination, was not made a party to the proceediugs before the Board. On appeal by leave of a judge to the Supreme Court of Canada. — Held, per Fitzpatrick, C.J., and Idington and Duff, JJ., that the Board had no jurisdiction to make the order. — Per Girouard, Davies and Anglin, JJ. — As the Michigan Central Rail- road Company was not a party to the pro- ceedings, it was not competent for the Board to make the order. — The appeal was allowed without costs. Niagara, 8t. Catharines and Toronto Railway Co. v. Davy, xliii., 277. 18. Construction of statute — R.S.C. 1906, c. 37, ss. 335. 336— Through traffic— Joint international tariffs — Filing iy foreign com- pany — Assent of domestic company — Tariffs " duly filed " — Jurisdiction of Board of Rail- , loay Commissioners.'] — Under section 3,36 of " The Railway Act," R. S. C. 19lW, eh. 37, tariffs filed by foreign railway companies for rates on through traffic originating in foreign territory, to be carried by continu- ous routes owned or operated by two or more companies from foreign points to desti- nations in Canada, are effective and binding upon all Canadian companies participating in the transportation, although not expressly assented to by the latter, and may be en- forced by the Board of Railway Commis- sioners for Canada against such Canadian companies. Anglin, J., contra. — Per Anglin, J. (dissenting). — "The Kailway Act" re- quires concurrence by the several companies interested as in other joint tariffs on through traffic mentioned in the Act. Grand Trunk Railway Co. v. British American Oil Co., xliii., 311. 19. Board of Railway Commissioners — Jurisdiction — Municipal corporation — Rail- way upon or along highway — Leave to con- struct — Approval of location — Condition im- posed — Payment of damages to atutting landoivners — Construction of statute — R.8. C. (1908) c. 37, ss. 47, 155, 159, 235, 237.] — ^Having obtained the consent of the muni- cipality to use certain public streets for that purpose, the G. T. P. Ry. Co. applied to the Board of Railway Commissioners for Canada for leave to construct and approval of the location of the line of their railway upon and along the highways in question. None of the lands abutting on these high- ways were to be appropriated for the pur- poses of the railway, nor were the rights or facilities of access thereto to be inter- fered with except in so far as might result from inconvenience caused by the construc- tion and operation of the railway upon and along the streets. In granting the applica- tion the Board made the order complained of subject to the condition that the com- pany should " make full compensation to all persons interested for all damage by them sustained by reason of the location of the said railway along any street." On appeal to the Supreme Court of Canada : — Held, Davies and Duff, JJ., dissenting, that, under the provisions of section 47 of the " Rail- way Act," R. S. C. (1906), eh. 37, the Board had, on such application, the power to impose the condition directing that com- pensation should be made by the company in respect of the damages which might be suffered by the proprietors of the lands abut- ting on the highways of the municipality upon and along which the line of railway so located was to be constructed. Grand Trunk Pacific Railway Co. v. City of Fort William, xliii., 412. 20. Board of Railway Commissioners — Jurisdiction — Private siding — 'Construction of statute— " Railway Act," R.S.C. (1906), c. 37, ss. 222, 226, 317— Branch of railway — Estoppel — -Res inter alios.'\ — The Board of Railway Commissioners for Canada has not the power (except on expropriation or consent of the owner), to order that a pri- vate industrial spur-track or siding, con- structed and operated under an agreement between a railway company and the owner of the land upon which it is laid and used only in connection with the business of such owner, shall be also used and operated as a branch of the railway with which it is con- nected. Blackwoods v. Canadian Northern Ry. Co., xliv., 92. 21. Construction of statute — " The Rail- way Act," R. 8. C. (1906) , c. 37, ss 77, 315 S18 (2), 323— (D.) 1 Edw. VII. c. 53— (Man.) 52 V. c. 2; 53 V. c. 17; 1 Edw. VII., c. 39 — Board of Railway Commission- ers — Complaints — • Evidence — Agreement for special rates — Unjust discrimination— 965 EAILWAYS. 966 Practice— Form of order on reference.] — In \ii-tue of an agreement with the Government of Manitoba, validated by statutes of that province and of the Parliament of Canada, the Canadian Northern Railway Company established special rates for the carriage of freight, etc., to points in Manitoba, and the Canadian Pacific Railway Company reduced its rates, which had been in force prior to the agreement, in order to meet the compe- tition resulting therefrom. The complaint made to the Board of Railway Commission- ers for Canada by the respondents was, in effect; that as similar proportionate rates were not provided in respect of freight, etc., to points west of the province of Manitoba there was unjust discrimination operating to the prejudice of shippers, etc., to and from the western points. On questions sub- mitted for the consideration of the Supreme Court of Canada : — Held, that the facts mentioned are circumstances and conditions, within the meaning of the " Railway Act," to be considered by the Board of Railway Commissioners in determining the question of unjust discrimination in regard to both railways ; that such facts and circumstances are not, in law. conclusive of the question of unjust discrimination, but the effect, if any, to be given to them is a question of fact to be considered and decided by the Board in its discretion. (Of. The Montreal Park and_ Island Railway Go. V. The City of Montreal (43 Can. S. C. R. 256).) Canadian Pacific it'way Co. V. Board of Trade of Regina, xlv., 321. 22. Jurisdiction — Private siding — Con- struction of statute — " Railway Act," R. 8. C, 1906, c. 37, ss. 26a, 226— (D.) 8 d 9 Edw. VII. 0. 32, s. i.]— Notwithstanding provisions in an agreement under which a private industrial spur or siding has been constructed entitling the railway company to make use of it for the purpose of afford- ing shipping facilities for themselves and persons other than the owners of the land upon which it has been built, the Board of Railway Commissioners for Canada, except on expropriation and compensation, has not the power, on an application under s. 226 of the "Railway Act," (R.S.C. 1906, c. 37), to order the construction and operation of an extension of such spur or siding as a branch of the railway with which it is connected. Blachwoods Limited v. The Canadian North- ern Railway Co. (44 Can. S. C. R. 91), ap- plied. Duff, J., dissenting. Clover Bar Coal Co. V. Humherstone, xlv., 346. 23. Joint tariff — Power to supersede — De- claratory decree — Jurisdiction.] — In Janu- ary, 1907. certain railway companies in the United States, in connection with the appel- lant companies, filed through freight tariffs ("joint tariffs") with the Board of Railway Commissioners for Canada fixing the rates of carriage for shipments of goods from United States into .Canada. The tariffs so filed for the first time established a fixed rate for the carriage of petroleum and its products. In October. 1907, and in May, 1908, supple- mentary tariffs were filed by the foreign companies and concurred in by the Canadian carriers, but they were not sanctioned by the Board. These substituted for the fixed rate on petroleum a variable rate made up of the sum of the local rates on each side of the border. The respondent companies, in 1910, applied to the Canadian Board for an order declaring that the appellants had overcharged them by exacting the variable rate for carriage of petroleum, and an order was made by the Board declaring that the rates chargeable were those fixed by the " joint tariff " of January, 1907. The Can- adian carriers appealed from this order to the Supreme Court of Canada by leave of the Board on the question of law whether or not this order was right and by leave of a judge on a question of jurisdiction claim- ing that the Board could not make a decla- ratory order and grant no consequential re- lief, and that it could not declare in force a tariff which had ceased to exist: — Beld, that ss. 26 and 318 of the "Railway Act" auth- orized the Board to make an order merely declaratory. — Held, also, that the tariff of January, 1907, had not ceased to exist, but was still in force, never having been super- sedeA.—-IIeld, per Davies and Duff, JJ., that if the initiating company, or the companies jointly, had power to supersede a joint tariff duly filed they had not in this case taken the proper steps to effect that purpose. — Per Idington and Anglin, JJ., that such a tariff could only Ke superseded by the action, or with the sanction, of the Board. — The order appealed from was, therefore, affirmed. — (Leave to appeal to the Privy Council was granted, 13th December, 1912) . Canadian Pacific Ry. Co. v. Canadian Oil Cos., Ltd., xlvii., 155. 24. Constitutional law — Provincial tram- way — Jurisdiction of Board of Railway Commissioners — Highways — Overhead crossings — Apportionment of cost — Legisla- tive jurisdiction — Ancillary powers — "Inter- ested parties" — Construction of statute — "Railway Act," R. S. C, 1906, c. 37, ss. 8, 59, 237, 238— (B.C.) 8 id 9 Edw. VII., c. 32— "B. N. A. Act, 1867," s. 92, item 10.]— On an application by the City of Vancouver, the Board of Railway Commissioners for Canada authorized the Corporation of the City of Vancouver to construct overhead bridges across the ■tracks of a Dominion railway company, which had been laid down during the years 1909 and 1910 on certain streets in the city, and ordered that a por- tion of the cost of construction of two of these bridges and of the depression of the tracks at the crossings thereof by the Do- minion railway should be borne by a tram- way company which derived its powers through provincial legislation, and an agree- ment with the city pursuant to such legisla- tion under which it operated its tramways upon these streets. By the agreement the tramway company became entitled to use the city streets with reciprocal obligations by the city, and the company respecting their grading, repair and maintenance, and it was provided that the city should re- ceive a share of the gross earnings of the tramway company. On appeal to the Su- preme Court of Canada from the order of the Board: — Held, Duff and Brodeur, JJ., dissenting, that, in virtue of ss. 8(0), 59, 237 and 238 of the "Railway Act," R. S. C, 1906, c. 37, as amended by c. 32 of 8 & 9 Edw. VII., the Board of Railway Commis- ;9.67 RAILWAYS. 968 eioners for Canada had jurisdiction to deter- mine the "interested parties" in respect of the proposed works and to direct what pro- portion of the cost thereof should be borne .by each of them. The City of Toronto v. Canadian Pacific Railway Co. ( (1908) A. O. 54) ; Canadian Pacific Railway Co. v. Par- ish of Notre Dame de Bonsecours ( (1899) A. 0. 367) ; City of Toronto v. Grand Trunk Railway Company (37 Can. S. C. R. 232) ; County of Garleton v. City of Ottawa (41 Can. S. C. R. 552), and Re Canadian Pacific Railway- Co. and York (25 Ont. App. R. 65), followed. — Per Duff and Bro- deur, JJ., dissenting. — (1) The Parliament of (iJanada, when it assumes jurisdiction, under the provisions of item 10 of s. 92 of the "British North America Act, 1867," in respect of a provincial railway, Qu& rail- way, must assume such jurisdiction over the work or undertaking "as an integer." (2) The order of the Board cannot be sustained as being made in the exercise of the Do- minion power of taxation. (3) As there is no Dominion interest concerned in the pro- visions of the order under appeal, and the Dominion Parliament has no power to com- pel the provincial company to assume the burden of the cost of the proposed works, or any portion thereof, the Board of Rail- way Commissioners had no jurisdiction to assess a proportion of their cost upon the tramway company. (4) The cases cited above must be distinguished as they do not sustain, as a valid exercise of ancillary power by Dominion authority, any enact- ment professing to control a provincial rail- way company. — (Note. — Leave to appeal to the Privy Council was granted on 14th July, 1913.) British Columbia Electric Railway Co. V. Vancouver, Victoria Railway Co., xlviii., 98. 25. Location plans — Width of right-of-way — Subsequent alteration — Substituted plant — Approved of new plans — Order having e» post facto effect — Jurisdiction of Board of Railway Commissioners — Construction of statute — "RaMway Act," R. 8. C, 1906, o. 37, ss. 162, J67.]— The Board of RaUway Commissioners for Canada has no jurisdic- tion, by an order permitting a railway com- pany to file a new location plan, to be substituted for and as of the date of a former location plan previously approved by it, to authorize the company to alter, re- trospectively, the former location of its rail- way. The proper method of effecting any such alteration is by proceedings under s. 162 or s. 167 of the "Railway Act," R. S.C., 1906, c. 37. Chambers v. Canadian Pacific Railway Co., xlviii., 162. 26. Construction — Route and location plans — Approval — Obstruction to navigation — Demolition of works — Jurisdiction of Board of Railway Commissioners — "Rail- way Act," R. 8. C, 1906, c. 37, ss. SO(h), (i), 2S0, ZSS.I — Where a railway company in the professed exercise of its powers as a railway company and without the approval of the route by the Minister and of the loca- tion plans and works by the Board of Rail- way Commissioners for Canada, has con- structed a solid filling across inavigable waters, the Board, under the provisions of ss. 23(J and 233 coupled with sub-sections- (h) and (») of s. 30 of the 'IRailway Act," R. S. C, 1906, c. 37, has jurisdiction to order the demolition of the works so con-' structed. Grand Trunk Pacific Railway Co. V. Rochester, xlviii., 238. 27. Board of Railway Commissioners — Appeals on questions of law — Stated case — Submission of specific question — Practice — Construction of statute — R. 8. O., 1906, c. S7, s. 55 and s. 56, s.-s. S.] — ^An appeal, under the provisions of s. 55, or s. 56, s.-s. 3, ^ of the "Railway Act," R. S. C, 1906, e. 37, should not be entertained by the Su- preme Court of Canada until the Board of Railway Commissioners for Canada has stated the case in writing and submitted for the opinion of the court some question which, in the opinion of the board, is a question of law. (Cf. "Regina Rates Case," 44: Can. S. C. R. 328, where this case was followed by Anglin, J., and 45 Can. S. C. R. at pp. 323 to 328.) Canadian Pacific Rail- way Co. V. City of Ottawa, xlviii., 257. 28. Board of Railway Commissioners — Jurisdiction — Constructed line of railway — Deviation — Application by municipality — "Special Act" — Stated case — Question of law — Statute — "Railway Act," R. 8. C 1906. c. 37, ss. 2(2S), 3, 26, 28, 55, 167— (Ont.), 58 Vict., 0. 68— (D.) 58 i£ 59, Vict., c. 66.] — Under the provisions of s. 55 of the "Rail- way Act," R. S. C, 1906, c. 37, the Board of Railway Commissioners for Canada may, of its own motion, state a case in writing for the opinion of the Supreme Court of Canada upon a question of jurisdiction _which, in the opinion of the Board, in- volves a question of law. — ^The Board of RaUway Commissioners for Canada has no power under s. 167 of the "Railway Act," R. S. C, 1906, c. 37, to order deviations, changes or alterations in a constructed line of railway, of which the location has been definitely established, except upon the re- quest of the railway company. Anglin, J., contra. — Per Fitzpatrick, C.J. and Idington, J. — The Dominion statute 58 & 59 Vict., c. 66, confirming the municipal by-law by which the location of the portion of the railway in question was definitely estab- lished constitutes a "special Act" within the meaning of the "Railway Act," R. S. C, 1906, c. 37, ss. 2(28) and 3.— Per Anglin, J.- — The power of the Board of Railway (Commissioners for Canada to order flevia- tions, changes or alterations in a constructed line of railway is not limited to diversions within one mile from the line of railway as constructed. Hamilton v. Toronto, Sam- ilton & Buffalo Railway, 1., 128. 29. Board of Railway Commissioners — Jurisdiction — Provincial crossing — Dominion railway — Change of grade — Elimination of level crossing — Substitution of subway Public protection and safety — Power to order provincial railway to share in payment of cost — "Railway Act" ss. 8(a), 59 and 288.] — The provisions of the "Railway Act" empowering the Board of Railway Commis- sioners to apportion among the persons in- terested the cost of works or constructions which it orders to be done or made are intra vires. — On Avenue Road, Toronto the tracks of the Toronto Hy. Co. crossed those 969 KAILWAYS. 970 of the C. P. Ry. Co. at rail level. On re- port of its chief engineer that this crossing was dangerous, the Board, of its own mo- tion, ordered that the street be carried under the C. P. Ey. tracks. This change of grade relieved the Toronto Ey. Co. from the ex- pense of maintaining an interlocking plant and benefited it otherwise. — Held, that the order was made for the protection, safety and convenience of the public ; that the Toronto Ry. Oo. was a "company interested or affected by such order" ; and that the Board had jurisdiction to direct that it should pay a portion of the cost of the subway. British Columbia Electric Rail- way Co. V. Vancouver, Victoria and Eastern Railway Co., [1914] A. C. 1067, distin- guished. — The agreement between the Tor- onto Ry. Co. and the City of Toronto by which the former was given the right to lay its tracks on certain streets, including Avenue Road, did not affect the power of the Board to make said order. Toronto Rail- way Co. v. Toronto, liii., 222. 30. Board — Powers — "Railway Act" and amendments — Bell Telephone Co. — Use of long distance lines — Compensation — Loss of local business — Competing companies— Spe- cial toll.'i — ^Under the provisions o(6 the "Railway Act" and its amendment by 7 & 8 Edw. VII., c. 61, the 'Railway Board has power to authorize a charge in addition to the established rates of the Bell Telephone Oo. as compensation for the use of its long distance lines. Idington, J., contra. — By said Acts the Board is authorized to pro- vide compensation to the Bell Telephone Co. for loss in its local exchange business oc- casioned by giving independent companies long distance connection. Davies and Iding- ton, JJ., contra. — The Board has power also to authorize payment of a special rate by companies competing with the Bell Oo. who obtain the long distance connection, though non-competing companies are not subjected thereto. Idington. J., contra. Ingersoll Telephone Go. v. Bell Telephone Co., liii., 583. 31. Appeal from Board of Railway Com- missioners — Special leave — Jurisdiction of judge in chambers, xxxvi., 321. See ApPEAt. 82. Board of Railway Commissioners ■ — Jurisdiction — Special leave to appeal — Rail- way Act of 1903, Cout. Gas. 394. See Appeal. 33. Operation of thihoays — Interchange of traffic — Use of tracks— Interswitching — Conditions imposed — Traffic rates — Jurisdic- tion of Board of Railway Commissioners — Railway Act, 1903, ss. 137, ZU, S5S, 266, 267, 271—6 Edw. VII., c. J,2, s. S— Occupa- tion of property of other companies — Con- struction of statute. Grand Trunk Ry. Co. V. Can. Pae. Ry. Co. and City of London, Cout. Gas. 396. 34. Board of Railway Commissioners for Canada — "Railway Act, 1903," ss. 23, 184 - — Construction, etc., of street railways and tramways — Removal of tracks — Jurisdiction of Board — Condition precedent — Use of highways in cities and towns — Consent by municipal authority — Approval of by-law' — Quebec Municipal Code, arts. \6It, JfSl, xxxvi., 369. See Railways. 35. Protection of crossings — Party inter- ested— "Railway Act, 1888," ss. 187, 188 — "Railway Act, 1903," ss. 186, 187— Legis- lative powers, xxxvii., 232. See Constitutional Law. 36. Board of Railway Commissioners — Consideration of complaints — Evidence — Rejection — Agreement as to special rates — Unjust discrimination. Montreal Park dc Island Ry. Co. v. Montreal, xliii., 256. See Boabd of Railwat Commissionees. 37. Appeal — Leave by judge — Jurisdiction of Railway Board — Doubt as to decision of Board, xliv., 298. See Appeal. 38. Appeal — Setting down for hearing — Form of submission — Defining questions of law, xliv., 328. See Appeal. 2. Caebting Goods and Passengbes. 39. Negligence — Assault on passenger — Duty of conductor.] — If a passenger on a railway train is in danger of injury from a fellow passenger, and the conductor knows, or has an opportunity of knowing of such danger, it is the duty of the latter to take precautions to prevent it, and if he fails or neglects to do so the company is liable in case the threatened injury is inflicted. Pounder v. North Eastern Railway Co^ ([1892] 1 Q. B. 385), dissented from. Judg- ment of the Court of Appeal (5 Ont. Ii. R. 334), affirmed. (Leave to appeal refused by Privy Council, [1904] A. C. 453). Canadian Pacific Ry. Co. v. Blain, xxxiv., 74. 40. New trial — Decree of appellate court — Reasons for judgment.] — ^B., a passenger on a railway train, was thrice assaulted by a fellow passenger during the passage. The conductor was informed of the first assault immediately after it occurred and also of the second, but took no steps to protect B. In an action against the railway company B. recovered damages assessed generally for the injuries complained of. The verdict was maintained by the Court of Appeal, but the Supreme Court of Canada ordered a new trial unless B. would consent to his dam- ages being reduced (34 Can. S. 0. R. 74). In the reasons given for the last-mentioned judgment written by Mr. Justice Sedgewick for the court, it was held that damages could be recovered for the third assault only, but the judgment, as entered by the regis- trar, stated that the court ordered the re- versal of the judgment appealed from and a new trial unless the plaiotifE accepted the reduced amount of damages. Such amount having been refused, a new trial was had on which B. again obtained a verdict, the dam- ages being apportioned between the second 971 EAILWAYS. 972 and third assaults. On appeal to the Su- preme Court of Canada from the judgment of the Court of Appeal maintaining this ver- dict. — Seld, Taschereau, C.J. and Davies, J., dissenting, that as the decree was in ac- cordance with the judgment pronounced by the court when its decision was given, and as it left the whole case open on the second trial, the jury were free to give damages for the second assault, and their verdict should not be disturbed. — Seld, per Tasch- ereau, C.J., that the decree of the court should have been framed with reference to the opinion giving the reasons for the judg- ment, and, if necessary, could be amended so as to be read as the court intended. Canadian Pacific Railway Co. v. Blain, xxxvi., 159. 41. Negligence — Condition limiting liaiil- ity — Contract to carry passenger.'] — The plaintiff purchased from an agent of the de- fendant company at Ottawa what was called a land-seeker's ticket, the only kind of re- turn ticket issued on the route, for a pas- sage to Winnipeg and return, paying some thirty dollars less than the single fare each way. The ticket was not transferable and had printed on it a number of conditions, one of which limited the liability of the company for baggage ; to wearing apparel, not exceeding $100 in value, and another required the signature of the passenger for the purpose of identification and to prevent a transfer. The agent obtained the plain- tiff's signature to the ticket, explaining that it was for the purpose of identifi- cation, but did not read nor explain to her any of the conditions ; the plaintiff having sore eyes at the time was unable to read the conditions herself. On the trip to Winnipeg an accident happened to the train, and plaintiff's baggage, valued at over $1,000, caught fire and was destroyed. In an action for damages for such loss the jury found for the plaintiff for the amount of the alleged value of the baggage. — Seld, reversing the judgments of the Court of Appeal (15 Ont. App. R. 388), and of the Divisional Court (14 O. R. 625), (Gwynne, J., dissenting), and affirming the judgment at the trial, that the plaintiff was entitled to recover damages for loss of baggage caused by the defendants' negligence notwithstand- ing the condition limiting the defendants' liability printed upon the ticket sold to the plaintiff. — Held, per Strong and Taschereau, JJ., that the plaintiff was misled as to the effect of the conditions indorsed on the ticket, and by the answers she received from the defendants' ticket agent, and should not be bound by the condition limiting the com- pany's liability. — Held, per Fournier, J., adopting the reasons of Mr. Justice Rose in the court below, that there was evidence on which the jury could reasonably find negli- gence ; that the condition limiting the com- pany's liability could not avail, and that the decision in Grand Trunk By. Co. v. Vogel (11 Can. S. C. R. 612) applied.— Hefd, per Gwynne, J., that It was competent for the railway company to enter into a contract with a passenger of the nature pleaded by the defendants in this case, and that the de- cision in the Grand Trunk Ry. Go. v. Yogel (11 Can. S. C. R. 612), had no bearing upon this case. — Per Gwynne, J. ; that improper construction of the road-bed did not under the circumstances' of the case constitute "any negligence or omission of the defend- ants or their servants," within the mean- ing of the statute. — Per Gwynne, J., con- curring with Patterson, J., in the court be- low ; that the accident having occurred upon a portion of- the railway which had been constructed by the Dominion Government the defendants could not be charged with negligence in the construction. Bate v. Can. Pac. Ry. Co. (xviii., 697) ; Cam. Cas. 10. 42. Carriage of passenger — Special con- tract — Notice to passenger of conditions — Negligence — Exemption from liability.'] — P., at Milverton, Ont., purchased a horse for a man in another" town, who sent R. to take charge of it. P. signed the way-bill in the form approved by the Board of Railway Commissioners, which contained a clause providing that if the consignee or his nom- inee should be allowed to travel at less than the regular fare to take care of the property the company should not be liable for any injury to him whether caused by negligence or otherwise. R. was not asked to sign the way-bill though a form indorsed provided for his signature and required the agent to obtain it. The way-bill was given to R., who placed it in his pocket without examining it. On the passage he was in- jured by negligence of the ■ company's ser- vants. — Held, that R. was not aware that the, way-bill contained conditions. — Held, also, Fitzpatrick, C.J., dissenting, that the company had not done all that was incum- bent on them to bring notice of the special condition to his attention. — Judgment of the Court of Appeal (27 Ont. L. R. 290), re- versed and that of the trial judge (26 Ont. L. R. 437), restored. Robinson v. Grand Trunk Railway Co., xlvii., 622. 43. Freight rates — Discrimination — Re- bate — Construction of statute — Quebec Rail- way Act, R. S. Q., 1888, wrt. 5172 — Company — Contract by directors — Powers — Approval of tariffs.'] — ^An agreement by which a rail- way company undertakes to grant a rebate upon shipments of car lots of goods made by a manufacturer who engages to bear the cost of loading and unloading his freight, unless shewn to be an artifice to secure un- just discrimination, is not in contravention of the provisions of article 5172 of the Que- bec Railway Act, R. S. Q., 1888, prohibit- ing undue advantage, privilege or monopoly being_ afforded to any person or class of per- sons in relation to tolls. Judgment appealed from (Q. R. 21 K. B. 85) affirmed, Idington and Anglin, JJ., dissenting. — Per Brodeur, J. (approving the judgment appealed from). —The directors of a railway company may bind the company by such an agreement in relation to the business of the railway without having special sanction therefor by the shareholders. Quebec Id Lake St. John Railway Co. v. Kennedy, xlviii., 520. 44. Construction of contract — Free passes on railway. Grand Trunk Ry. Co. v. Nia- gara Falls International Bridge Go rmit Cas. 263. ' °"^- 973 EAILWAYS. 974 45. Negligence — Free-pass — Considera- tion for transportation — Misdirection — Findings of jury — Neic trial — Excessive damages— Art. 503 C. P. Q., xxxv., 68. See Damages. 3. CONSTBTJCTION. 46. Negligence — Defective construction of road-iedr— Dangerous way — Vis major — Evi- dence — Onus of proof — Latent defect.'] — The road-bed of appellants' railway was con- structed, in 1893, at a place where it fol- lowed a curve round the side of a hill, a cutting being made into the slope and an embankment formed to carry the rails, the grade being one and one-half per cent, or 78.2 feet to the mile. The whole of the em- bankment was built on the natural surface, which consisted, as afterwards discovered, of a layer of sandy loam of three or four feet in depth resting upon clay subsoO. No bor- ings or other examinations were made in order to ascertain the nature of the sub- soil and the road-bed remained for a num- ber of years without shewing any subsidence except such as was considered to be due to natural causes, and required only occasional repairs ; the necessity for such repairs had become more frequent, however, for a couple of months immediately prior to the accident which occasioned the injury complained of. Water, coming either from the berm-ditch, or from a natural spring formed beneath the sandy loam, had gradually run down the slope, lubricated the surface of the clay and, finally, caused the entire embankment and sandy layer to slide away about the time a train was approaching, on the evening of 20th September, 1904. The train was de- railed and wrecked and the engine-driver was killed. — In an action by his widow for the recovery of damages : — Held, that in constructing the road-bed, without sufficient examination upon treacherous soil and fail- ing to maintain it in a safe and proper con- dition, the railway company was. primed facie, guilty of negligence, which cast upon them the onus of shewing that the accident was due to some undiseoverable cause ; that this onus was not discharged by the evi- dence adduced from which inferences merely could be drawn and which failed to nega- tive the possibility of the accident having been occasioned by other causes which might have been foreseen and guarded against, and that, consequently, the company was liable in damages. Judgment appealed from af- firmed, following The Great Western Rail- way Go. of Canada v. Braid (1 Moo. P. C. (N. S.) 101), Quebec and Lake St. John Ry. Co. V. Jnlien, xxxvii., 632. 47. Navigation — Trent canal crossing — Swing bridge — Cost of construction — Main- tenance — Order in council.l — The C. P. Ry. Co. applied for liberty to build a bridge over the Otonabee, a navigable river, under- taking to construct a draw in it should the Government deem it necessary. An order in council was passed providing that "the company . . . shall construct either a swing in the bridge now in question . . the cost to be borne by themselves or else a new swing bridge over the contemplated canal (Trent Valley Canal), in which case the expense incurred over and above tie coat of the swing itself and the necessary pivot pier therefor shaU be borne by the Government." — ^A new swing bridge was constructed over the canal by agreement with the company. — Eeld, that the words "the cost of the swing itself and the neces- sary pier" included, under the circumstances and in the cormection in which they were used, the operation and maintenance also of the swing by the company. Canadian Pacific Ry. Co. v. The King, xxxviii., 211. 48. Statutory contract — Construction — Bonds of railway company — Government guarantee.'] — The Government of Canada, in a contract with the Grand Trunk Pacific Railway Co., published as a schedule to and confirmed by 3 Edw. VII., c. 71, agreed to guarantee the bonds of the company to be issued for a sum equal to 75 per cent, of the cost of construction of the western division of its railway. By a later eon- tract (sch. to 4 Edw. VII., c. 24), the Government agreed to implement its guaran- tee, in such a manner as might be agreed upon, so as to make the proceeds of said bonds a sum equal to 75 per cent, of such cost of construction. — Held, that this second contract only imposed upon the Government the liability of guaranteeing bonds, the pro- ceeds of which would produce a defined amount and not that of supplying, in cash or its equivalent, any deficiency there might be between the proceeds of the bonds and the said 75 per cent. Grand Trunk Pacific Railway Co., xlii., 505. 49. Construction and operation — Location plans — Delaying notice to treat — Action to compel expropriation — Compensation in re- spect of lands not acquired — Mandamus — Use of highway — Crossing public lane — Nuisance.] — The approval and registration of plans, etc., of the located area of the right-of-way, under the provisions of the "Railway Act," and the subsequent con- struction and operation of a railway along such area, do not render the railway com- pany liable to mandamus ordering the ex- propriation of a portion of the lands shewn upon the plans which has not been physically occupied by the permanent way so con- structed and operated.^Judgment appealed from reversed, the Chief Justice and Davies, J., dissenting. "Vancouver, 'Victoria Ic6 East- ern Ry. d Navigation Co. v. McDonald, xliv., 65. 50. Grossing lines — Overhead bridges — Contract for maintenance — Future traffic] — ^A railway company wishing to cross the line of another contracted with the latter for four crossings, three by an overhead bridge and one by a subway under a bridge of the other company. The contract con- tained this provision : "The said several crossings . . . shall be maintained at the cost of the Ontario Company (junior road), and shall each always be maintained in a good and safe state, and so as in no way to endanger the property, fixed or mov- able, of the Midland Company (senior road) ." The bridges were to be constructed according to plans and specifications settled and approved by the chief engineer of the senior road, and if the junior failed to mam- 975 EAILWAYS. 976 tain them to the satisfaction of tie chief engineer tie senior road could cause tha necessary work to be done at the cost of the other company. — Held, that the obligation of the junior road was not merely to keep the crossings in good and sufficient repair in the condition they were in when the contract was made, but they could, at any time, be ordered by the Railway Board to make them fit for the heavier traffic caused by the in- creased business of the senior road. Can- adian Pacific Ry. Go. v. Orand Trunk Ry. Co., xlix., 525. 51. Construction of statute — Spur line to industry — Rehate from tolls — R. S. 0., [1906] c. 37,- s. 226.]— By s. 226 of the "Railway Act" the Railway Board may, on application by the owner of an industry within six miles of a railway order the company to construct and operate a spur line from its railway to such industry, the applicant to provide for the cost of con- struction and be repaid by a rebate to be fixed by the Board "out of or in proportion to the tolls charged by the company in re- spect of the carriage of traffic for the ap- licant over the said spur or branch line." — Held, Anglin, J., dissenting, that such re- bate was not restricted to the tolls for carriage of goods over the said spur, but was applicable to the tolls for carriage of traffic over the company's main line to and from the said industry. Grand Trunk Rail- way Go. V. Hepworth SiUca Pressed Brick Co., li., 81. 52. Suisidies — Aid to construction — Pur- chase of constructed line — Gonstruction of statute — 'Supplementary agreement — Rights of transferee — Ohligation binding on the Grown.] — The suppliant company was in- corporated by Dominion statute, 6 Edw. VII., c. 150, with power to hold, maintain and operate the railway of the S.S. Ry. Co., and became vested with the franchises and property- of that railway company which had been sold in virtue of the statute, 4 6 5 Edw. VII., c. 158. The S.S. Ry. Co. had constructed 6% miles of its railway, be- tween Tamaska and St. Francis River, for which it had not received subsidy aid as authorized by 62 & 63 Vict., c. 7, and, by 7 & 8 Edw. VII., c. 63, in lieu of the aid provided by the former statutes, subsidy was authorized to be paid to any company com- pleting the construction of 70 miles of the railway from Tamaska on a location which included the 6% miles of railway so con- structed. Under the authority of this legis- lation the Crown and the appellant company entered into a supplementary\agreement fix- ing the subsidy for the construction of this 70 miles of railway. The company com- pleted the unconstrueted portion 'of the rail- way, and claimed subsidy for the whole length of the line, including the 6% miles acquii^ed in virtue of the sale authorized by 4 & 5 Edw. VII., c. 158. — Held, revers- ing the judgment of the Exchequer Court of Canada (15 Ex. C. R. 237), Idington, J., dissenting, that the undertaking of the com- pany to construct the railway was satisfied whether it actually constructed the whole line itself or purchased a constructed portion thereof to form part of the subsidized line ; that the statute 7 & 8 Edw. VII., author- izing the subsidy together with the supple- mentary contract with the Grown consti: tuted an obligation binding on the' Crown and the company was, consequently ,_ entitled to the amount of the subsidy applicable to the QV2 miles of the railway in question. Quebec, Montreal & Southern Railway Co, v. The King, liii., 275. 53. Location — Registration of plans — Construction of line — Plan of subdivision subsequently filed — Dedication of highways — Rights of municipality — Priority — "Railway Act," R. 8. C, 1906, c. 37 — Dominion "Rail- way Act," 1903.] — ^The filing of location plans by a railway company in the proper registry office, after" such plans have been approved by the Board of Railway Commis- sioners under the provisions of the Domin- ion "Railway Act," is sufficient and effective, after the railway company has constructed its line upon the location indicated, to estabr lish the seniority of the right of the rail- way company over that of the municipality at points where highways were not dedi- cated, by the filing of plans aft subdivision by the owner or otherwise, or actually used, constructed or accepted by the municipal corporation at the time of the registration of the location plans by the railway com- ^pany. Edmonton v. Galgary & Edmonton Railway Go., liii., 406. 54. Branch lines — Canadian Pacific Rail- way Company's charter — 44 Vict., c. 1 (D.) and schedules — Gonstruction of contract — Limitation of time — Interpretation of terms ■ — "Lay out," "Gonstruct," "Acquire" — "Territory of Dominion" — Hansard debates — Gonstruction of statute — "The Railway Act, 1903," xxxvi., 42. See Railways. 55. Board of Railway Commissioners — Jurisdiction - — Appeal to Supreme Court, xxxvii., 372. See Railways. 56. Trespass — Railway company — Occupor tion of lands — Side tracks — Continuous tres- pass — Damages. Canadian Pacific Railway Co. Y. Garr, xlvlii., 514. 57. Right of action — Protection of rail- way crossings — Construction of subway — Order-in-council — Apportionment of cost — Land damages — Injurious affection — "Nova Scotia Railway Act," R. S. N. S. (1900), ss. 178 and 179, 1., 6. See Damages. 4. Contracts. 58. Statutory contract — Gonstruction — Bonds of railway company — Government guarantee. Re G. T. P. Ry., xlii., 505. See Contract. 59. Lessor and lessee — Covenant to re- new — Severance of term — Consent of lessor — Enforcement of covenant — Expropriation — Persons interested. Alex. Brovm Millina Go. V. G. P. R., xlii., 600. " See Lelase. 977 EAILWAYS. 978 60. Local agent of railway company ■ — Collection of freight charges — Receipt de- livered before payment. Continental Oil V. C. P. R., lii., 605. See Estoppel. 5. Expropriation. 61. Government railway — Expropriation — Injuries to property — ■ Crossing at em- iankment and cutting — Riparian rights — Access to shore — Assessment of damages once for all.] — K. was the owner of certain lands bounded on one side by Halifax har- bour, and the Government of Canada con- structed its railway through the land cut- ting off her access to the shore and gave her , no crossing. Proceedings having been taken in the Exchequer Court to fix the com- pensation to which K. was entitled, she was awarded (2 Ex. C. K. 21), for damages oc- casioned by reason of the absence of the railway crossing, the sum of $500. On appeal by K. to the Supreme Court oE Canada : — Held, Gwynne, J., dissenting, that the judge of the Exchequer Court erred, on a question of fact, in not taking into consideration that the character of the em- bankment and cutting made and the nature of the ground on each side would forbid the making of a reasonably practiciihle cross- ing, and that the consequence of the sever- ance would remain notwithstanding all that under the circumstances could be done to- wards making a crossing, and also had erred, in law, in not giving compensation for the severance once for all, and that instead of allowing K. $125 a year for four ye.irg' severance, he should have awiirded her a sum which would produce $125 a year for all time. — Held, that there is no obliga- tion in law to construct a crossing over a government railway apart from contract. — Held, per Gwynne, J., when a railway is constructed across property and severs it into parts in such manner as to make a crossing necessary to the full enjoyment of the several parts, the owner cannot against his will be deprived of a suitable crossing and compelled to accept compensation in lieu thereof. Kearney v. The Queen (Cout. Dig. 601), Cam. Cas. 344. 62. Arbitration and award — Exproprior tion — Form of award — Evidence — View of property — Proceedings on wrong principle — Disregarding evidence.'] — ^In expropriation proceedings, under the "Railway Act," the arbitrators in making their award stated that they had not found the expert evidence a valuable factor in assisting them in their conclusions and thnt, after viewing the pro- perty in question, they had reached their conclusions by "reasoning from their own judgment and a few actual facts submitted in evidence." On appeal from the judgment of_ the Supreme Court of Alberta setting aside the award and increasing the dam- ages. — Held, that it did not appear from the language used that the arbitrators had pro- ceeded without proper consideration of the evidence adduced or upon what was not properly evidence and, therefore, the award should not have been interfered with. Cal- gary and Edmonton Railway Co. v. Mac- Kinnon, xliii., 379. 63. Ewpropriation of land — Compensation — Transcontinental Railway Commission — Jurisdiction — "Railway Act" — "Emihequer Court Act," s. 2(d)— S Edw. VII., c. 7i.] —"The Transcontinental Railway Act," 3 Edw. VII., c. 71, does not expressly em- power the commissioners to deal with com- pensation for land taken for the railway, and s. 15 giving them "the rights, powers, remedies and immunities conferred upon a company under the 'Railway Act' " does not confer such power. — The Transcontin- ental Railway is a public work within the meaning of s. 20, s.-s. (d) of "The Ex- chequer Court Act," and proceedings re- specting compensation for land taken for the railway may be taken by or against the Crown in the Exchequer Court. — Judg- ment of the Exchequer Court (13 Ex. C. R. 171), reversed. The King v. Jones, xliv., 495. 64. Expropriation — Municipal plan — Severance of lots — Injurious affection — Re- ference back to arbitrators — R. 8. C, 190S, c. 37.] — For the purposes of expropriation under the Dominion "Railway Act," unless lots laid out on the owner's registered plan are so united as to form one complete whole, each lot taken by the railway company is an independent, separate and complete pro- perty in itself and the owner is not entitled to compensation for injurious affection to any such lot, of which no part is taken, and which is severed from the land expropriated by a railway or by land sold to another person. Cooper-Essex v. Local Board for Acton (14 App. Cas. 153), distinguished. Duff and Anglin, JJ., contra. — The owner of land adjacent to or abutting upon the street over which a railway passes is en- titled, by 1 & 2 Geo. V., c. 22, s. 6, to compensation for injury to such land, but the compensation can only be awarded by the Board of Railway Commissioners, and is not a matter for arbitration under the "Railway Act." — Held, per Duff and Anglin, JJ. — The arbitrators appointed to value land so expropriated are functi officio when their award is delivered, and an appellate court has no power to remit the matter to them ,. for ifurither consideration. Cedars Rapids Manufacturing Co. V. Lacoste ((1914) A. 0. 569), referred to. Canadian Northern Ontario Railway Co. v. HoMitch, 1., 265. 65. Expropriation — Material for construc- tion — Notice to treat — Statute — "Railway Act," R. 8. C, 1906, c. 37, ss. 180, 191, 192, 193, 194, 196 — Compensation — Date for as- certainment of value — Order for possession — Deposit of plans — Approval of Board of Railway Commissioners.'] — ^With regard to obtaining materials for the construction of railways, the effect of s.-s. 2 of s. 180 of the "Railway Act," R. S. C, 1906, c. 37, merely requires the general provisions of the Act relating to the using and taking of lands to be observed in so far as they are appropriate to the expropriation of the lands and settling the compensation to be paid therefor; s. 192 of the Act has no application to such a case. — Notices were given, in compliance with ss. 180, 193 and 194 of the "Railway Act," and, before any change had taken place in respect to the 979. EAILWAYS. 980 value of the lands to be taken, the railway company obtained an order of a judge per- mitting it to do so, and took possession of the lands in question. — Held, that the title of the company to the lands, when consum- mated, must be considered as relating back to the date when possession was taken and that the compensation payable therefor should be ascertained with reference to that time. — Judgment appealed from (6 Alta. L. K. 471), affirmed. Saskatchewan Land Co. V. Calgary td Bdmonton Railway Co., li., 1. 66. Baepropriation of lands — Arhitration — Appeal — Jurisdiction of court on appeal — Reference hach to arbitrators — Proceedings iy arbitrators — Receiving opinion testimony — Numliffr of witnesses examined — "Alberta Evidence Act," 1910 — Alberta "Arbitration Act," 1909^Alberta "Railway Act," 1907 —Setting aside award — Evidence — Admis- sion in prior affidavit — Ascertaining value of lands.'] — The provisions of the Alberta "Ar- bitration Act" of 1909, in relation to refer- ences to arbitration, apply to proceedings on arbitrations under the Alberta "Kailway Act" of 1907, and give power to the court or a judge, on an appeal from the award made, to remit the matters referred, to the arbitrators for reconsideration. Anglin. J., inclined to the contrary opinion. — Per Da- vies, Idiugton and Anglin, J J. (Fitxpatrick, C.J., contra). — When arbitrators have vio- lated the provisions of s. 10 of the "Alberta Evidence Act" of 1910, by receiving the testimony of a greater number of expert witnesses than three, as thereby limited, upon either side of the controversy, their award should be set aside by the court upon an appeal. — Per Pitzpatrick, C.J., and Idington, J. (Davies, J., contra). — An affi- davit of the party whose property has been expropriated, made for different purpose,? several years prior to the expropriation pro- ceedings, cannot properly be taken into con- sideration by arbitrators as evidence estab- lishing the value of the property at the time of its expropriation. — Per Idington and Bro- deur, JJ. — In the circumstances of the case the arbitrators were not fundi officiis, as their award had been invaiidly made. — The appeal from the judgment of the Appellate Division of the Supreme Court of Alberta (8 Alta. L. R. 379) and the cross-appeal therefrom were dismissed with costs. Can- adian Northern Western Railway Cn. v. Moore, liil., 519. 67. Expropriation — Date for valuation of lands — Deposit of plan — Notice — Benefit to lands not talcen — Set-off — Excessive compen- sation — Appeal — 6 Edw. VII. c. 30 (Ont.) —8 & J, Oeo. V. c. 36 (0»t.)]— Where the expropriation of land is governed by the provisions of the Ontario " Railway Act " of 1906 the date for valuation is that of the notice required by s. 68(1). The effect is the same under the Act of 1913 if the land has not been acquired by the railway com- pany within one year from the date of filing the plan, etc. — The compensation for the land expropriated should not be diminished by an allowance for benefit by reason of the railway to the lands not taken, the Ontario " Railway Acts " making no provision there- for. — On appeal in a matter of expropriation the award should be treated as the judgment of a subordinate court subject to re-hearing. The amount awarded should not be inter- fered with unless the appeal court is satis- fied that it is clearly wrong, that it does not represent the honest opinion of the arbitra- tors, or that their basis of valuation was erroneous. — Where the land expropriated is an important and useful part of one holding and is so connected with the remainder that the owner is hampered in the use or disposal thereof by the severance he is entitled to compensation for the consequential injury to the part not taken : Holditch v. Canadian Northern Railway Co. (50 Can. S.C.R. 265 : [1916] 1 A. C. 536), distinguished.— To esti- mate the compensation for lands expropri- ated the arbitrators are justified in basing it on a subdivision of the property if its situa- tion and the evidence respecting it shew that the same is probable. — Held, per Fitzpat- rick, C.J., and Anglin, J., that to prove the value of the lands expropriated evidence of sales between the date of filing the plans and that of the notice to the owner is admissible and also of sales subsequent to the latter date if it is proved that no material change has taken place in the interval. — Brodeur, J., dissenting, beld that the damages should be reduced; that the arbitrators should have considered only the market value of the lands established by evidence of recent sales in the vicinity. Toronto Suburban Railway Go. V. Everson, liv., 395. 68. Expropriation of land — Arbitration — Authority for submission — Trespass — 2 Edw. VII. c. lOJf (N.S.), xxxvii., 134. See EXPHOPRIATION. 69. Appeal — Order extending time — -Juris- diction — R. S. C. (18S6) c. 135, s. 42 — Prac- tice — Trespass — Possession — Evidence — Expropriation — Railways, xxxviii., 230. See Appeal; Trespass. 70. Appeal — Railway Act — Expropriation — Appeal from award — Jurisdiction — Choice of forum — Curia designate, xxxviii., 511. See Appeax. 71. Arbitration and award — Expropria- tion — Form of award — View of property — Proceeding on wrong principle — Disregard- ing evidence. Calgary & Edmonton Ry. Co. V. MacKinnon, xliii., 379. See Arbitration and Award. 72. Arbitration and award — Procedure — Prolonging date for award — Special circum- stances— R. S. C. 1906, c. 37, s. 20Jt, xlviii., 242. See Crown. 73. Appeal — Application to appoint ar- bitrator — Persona designata — Amount in controversy — " Railway Act," R. 8. C. 1906, c. 37, s. 196 — Jurisdiction of court — Practice — Expropriation, 1., 476. See Appeal. 74. Expropriation — Agreement to fix com- pensation — Arbitration or valuation — Pow- ers of referees — Majority decision, 1. 409. See Arbitration. 981 EAILWAYS. 982 75. Empropriation — Agreement to fix com- pensation. Campbellford, Lake Ontario & ITest. ie. R. Go, V. Massie, 1. 409. See Abbitbation. 76. Expropriation — Eminent domain — PitiZic work — Abandonment — Revesting of land taken — Compensation — Estimating damages — Construction of statute — Jurisdic- tiont of Escchequer Court — "National Trans- continental Railway Act" — "Railway Act," R. S. C, 1906, c. 37 — " Exchequer Court Act" — "Expropriation Act" — "Railways and Canals Act." Gibb v. The King, lii., 402. 77. Expropriation — Business premises — • Special value — Mode of estimating compen- sation, liii., 416. See ExpEOPRiATiON. 6. Government Railways. 78. Negligence of fellow-servant — Opera- tion of railway — Defective switch — Public work — 2'ort — -Liability of Crown — Right of action — Exchequer Court Act, s. 16 (c) — Lord Campbell's Act— Art. 1056 C. 0.]— In consequence of a broken switch, at a siding on the Intercolonial Railway (a public work of Canada), failing to work properly, al- though the moving of the crank by the pointsman had the effect of changing the sig- nal so as to indicate that the line was pro- perly set for an approaching train, an acci- dent occurred by which the locomotive en- gine was wrecked and the engine-driver killed. In an action to recover damages from the Crown, under article 1056 of the Civil Code of Lower Canada : — Held, affirm- ing the judgment appealed from (11 Ex. C. R. 119), that there was such negligence on the part of the officers and servants of the Crown as rendered it liable in an action in tort ; that the " Exchequer Court Act," 50 & 51 V. c. 16, s. 16 (o), imposed liability upon the Crown, in such a case, and gave jurisdic- tion to the Exchequer Court of Canada to entertain the claim for damages ; and that the defence that deceased, having obtained satisfaction or indemnity within the meaning of article 1056 of the Civil Code, by reason of the annual contribution made by the Rail- way Department towards The Intercolonial Railway Employees' Relief and Insurance Association, of which deceased was a mem- ber, was not an answer to the action. Mil- ler V. TJie Grand Trunk Railway Co. ([1896] A. C. 187), followed. (Leave to appeal to Privy Council was refused ; 18th July, 1908). The King v. Armstrong, xl., 229. 79. Government railway — Operation over other lines — Agreement for running rights — Extensions and branches — "Public work" — Construction of statute — "Government Rail- ways Act"—R. S. C, 1906, c. 36, s. 80— Exchequer Court Act" — R. 8. C, 1906, c. HO, s. SO (c).] — The agreement between the Government of Canada and the Grand Trunk Railway Company, made under the provisions of the Dominion statute, 43 V. c. 8, giving the Government running rights and powers over a portion of the Grand Trunk Railway, from Levis to Chaudiftre, between two sections of the Intercolonial Railway, constitutes that portion of the Grand Trunk Railway a part of the Inter- colonial Railway, under the provisions of "The Government Railways Act," as amend' ed by 54 & 55 V. c. 50 (D.), and, conse- quently, a public work within the meaning of the "Exchequer Court Act," 50 & 51 V. c. 16, s. 16 (c), (D.) ; [R. S. C. 1906, c. 140, s. 20 (c.)] (11 Ex. C. R. 252, affid.) (Leave to appeal was refused by the Privy Council, 18th July, 1908). The King v. Lefraneois^ xl., 431. 80. Petition of right — Contract — Powers of Commissioners of the Transcontinental Railway — Liability of Crown — Construction of statute— S Edw. VII. c. 71.]—" The Na- tional Transcontinental Railway Act," 3 Edw. VII. c. 71 (D.), does not confer pow- ers upon the Commissioners of the Trans- continental Railway in respect to the inspec- tion and valuation of lands required for the purposes of the "Eastern Division " of the railway ; consequently, a petition of right will not lie for the recovery of remuneration for services of that nature. — Judgment ap- pealed from (13 Ex. C. R. 155) affirmed, Idington, J., dissenting. Johnston v. The King, xliv., 448. 81. Negligence — Prescription — Damage or injury "by reason of construction" — Con- tractor — Transcontinental Railway Commis- sioners — "Railway Act," s. 308.'] — Section 15 of the "National Transcontinental Railway Act" provides that "The Commissioners shall have, in respect to the Eastern Division . . . all the rights, powers, remedies and immunities conferred upon a railway com- pany under the 'Railway Act.' " — Held, Fitzpatrick, C.J., and Idington, J., dissent- ing, that the provision in s. 306 of the "Railway Act" that "all actions or suits for indemnity for any damage or injury sus- tained by reason of the construction or operation of the railway shall be commenced within one year, etc.," applies to such an action against the Transcontinental Railway Commissioners, and also against a contractor for construction of any portion of the East- ern division. — Held, per Anglin, J., that it applies also to an action against a contractor for constructing a railway for a private rail- way company incorporated by Act of Parlia- ment. West V. Corbett, xlvii., 596. 82. Government railway regulations — Operation of trains — Negligent signaling — Fault of fellow-servant — Common fault — Boarding moving train — Disobedience of em- ployee — Voluntary exposure to danger — Cause of injury— R. S. C, 1906, c. 36, ss. jfQ^ g^ — Negligence — Master and servant.]-— By a regulation of the Intercolonial Rail- way, no person is allowed to get aboard cars while trains are in motion. Without ascer- taining that all his train-crew were aboard, the conductor signalled the engineman to start his train from a station where it had stopped to discharge freight. One of the crew, who had been assisting in unloading, then attempted to hoard the moving train 983 RAILWAYS. 981 and, in doing so, he was injured. — Held, that the injury sustained by the employee was the direct and immediate consequence of his in- fraction of the regulation which he was, by law, obliged to obey ^nd not the result of the fault of the conductor; that by disobedi- ence to the. regulation, the employee haij voluntarily exposed himself to danger from the moving train ; that the negligence of the conductor in giving the signal to start the train was not an act for which the Govern- ment of Canada could be held responsible and that its relation to the accident was too remote to be regarded as the cause of the injury. — Judgment appealed from (15 Ex. C. R.), affirmed. Turgeon v. The King, li., 588. 83. Expropriation of lands — Injuries to property- — Grossing at embankment or cut- ting — Riparian rights — Access to shore — As- sessment of damages. Cam. Cas. 344. See Railways. 7. Legislative Jubisdiction. 84. Powers of construction and operation — Conflict of laws — Provincial legislation — Interference with Dominion railways — Con- stitutional law — Jurisdiction of legislature — Construction of statute — 7 Edw. YII. c. S, s. 82 {Alta.)—S aeo. V. c. 15, s. 7 (Alta.) —"B. A". A. Act," 1867, ss. 91 and 92.]— It is not competent to the legislature of the prbvince of Alberta to enact legislation au- thorizing the construction and operation of railway in such a manner as to interferp with the physical structure or with the ope- ration oi railways subject to the jurisdiction of the Parliament of Canada. — Brodeur, J., contra, was of the opinion that such legisla- tion would be within the jurisdiction of the provincial legislature provided that in its effect there should be no unreasonable inter- ference with federal railways. Re Alberta Railway Act, xlviii., 9. 85. Board of Railway Commissioners — Jurisdiction — Lands of provincial railway company — Undertaking for general advan- tage of Canada — Transfer to provincial rail- way — Construction of statute — "Railway Act," R. S. C. 1906, 0. 37, s. i76.]— The Board of Railway Commissioners for Can- ada has no jurisdiction, under s. 176 of the "Railway Act," R. S. C, 1906, c. 37, to order that a Dominion railway company should be authorized to use or occupy lands which, at the time of the application for the approval and of the approval of the location of the Dominion railway, had become the property of a provincial railway company. City of Montreal v. The Montreal Street Railway Go. ((1912). A. O. 333), referred to. Idington, J., dissenting. — Per Idington, J. — The Board of Railway Commissioners for Canada has the same power to make or- ders respecting the use and occupation of the lands of a provincial railway company as it has in regard to the lands of any other cor- porate body createiJ fay a provincial legisla- ture. Montreal Tramways Co. y. Laohme, J acques-C artier and Maisonneuve Co., 1. 84. 8. Municipal Aid, Bt-laws, Highways, Bbidges, etc. 86. Construction of railway — Injunction — Interested party — Public corporations — Franchises in public interest — Lapse of chartered powers— -"Railway" or "tramway" — Agreement as to local territory — Invalid contract — Public policy — Dominion Rail- way Act — Work for general advantage of Canada — Quebec Railway Act — Quebec Municipal Code — Limitation of powers.'] — An agreement by a corporation to abstain from exercising franchises granted for the promotion of the convenience of the public is invalid as being contrary to public policy and cannot be enforced by the courts. — Per Sedgewick and Killam, JJ. A company having power to construct a railway within the limits of the municipality has not such an interest in the municipal highways as would entitle it to an injunction prohibit- ing another railway company from con- structing a tramway upon such highways, with the permission of the municipality under the provisions of article 479 of the Quebec Municipal Code. The municipality has power, under the provisions of the Muni- cipal Code, to authorize the construction of a tramway by an existing corporation notwithstanding that such corijoration has allowed its powers as to the construction of new lines to lapse by non-user within the time limited in its charter. — Per Gir- ouard and Davies, JJ. A railway company which has allowed its powers as to con- struction to lapse by non-user within the time limited in its charter and which does not own a railway line within the limits of a municipality where such powers were granted has no interest sufficient to main- tain an injunction prohibiting the construc- tion therein of another railway or tramway. Where a company, subject to the Dominion Railway Act, with powers to construct rail- ways and tramways, has allowed its powers as to the construction of new lines to lapse by non-user within the time limited, it is not competent for it to enter into an agree- ment with a municipality for the construc- tion of a tramway within the municipal limits under the provisions of article 479 of the Quebec Municipal Code. Montreal Park and Island Ry. Co. v. Ghateaguay and Northern Ry. Co., xxxv., 48. 87. Use of highways in cities and towns — Consent by municipal authority — Ap- proval of by-law — Q«e6eo Municipal Code, arts. 464, 481, xxxvi., 369. See Railways. 88. Railway aid — Municipal by-law — Gon-. dition precedent — Part performance — Annul- ment of by-law — Right of action — Assign- ment of obligation — Notice — Signification upon debtor — Art. 1571 G. C, xxxvi., 686. See Action. 89. Municipal corporation — Railway aid — Construction of agreement — Expropriqr tion — Description of lands — Reference to plans— R. 8. N. 8. 1900, c. 99 — 5 Edw VII., c. 97 {N.S.), xxxvii., 75. '. See Conteact. 985 RAILWAYS. 986 90. Highway — Dedication — Acceptance iy public — User, xxxvii., 210. See Highways. 91. Municipal corporation — Agreement with electric street railway Company-^— Use of streets — Payment for privilege — Percent- age of receipts — Traffic ieyond city — Valid- ity of agreement, xxxviii., 106. iSee Teiamways. 92. Appeal — Jurisdiction — Provincial tribunah— Consent of parties — Estoppel — Assessment — Railway bridge over navigable river. Township of Oornwall v. Ottawa d 2f. Y. B. R., lii., 466. See AssEssnENT and Taxes. 9. Negligent Opeeation, Etc. 93. Negligence ■ — Braking apparatus — Railway Act (1888) , s. 243 — Sand valves — Notice of defects in machinery — Liability of company — Provident society — Contract indemnifying employe! — Indemnity and sat- isfaotion-^Lord Campbell's Act — Art. 1056 C. C. — Bight of action'i — ^The "sander" and sand-valves of a railway locomotive, which may be used in connection with the brakes in stopping a train, do not constitute part of the "apparatus and arrangements" for applying the brakes to the wheels required by s. 243 of the Railway Act of 1888. — Failure to remedy defects in the sand- valves, upon notice thereof given at the re- pair shops in conformity with the company's rules, is merely the negligence of an em- ployee and not negligence attributable to the company itself ; therefore, the company may validly contract with its employees so as to exonerate itself from liability for such negligence and such a contract is a good answer to an action under article 1056 of the Civil Code of Lower Canada. The Queen v. Grenier (30 Can. S. C. R. 42), followed. — Girouard, J., dissented, on the ground that the negligence found by the jury was negligence of both the company and its employees. (Reversed by Privy •Council, [1906] A. C. 187). Grand Trunk Railway Co. v. Miller, xxxiv., 45. 94. Highway crossing — Negligence — Bate of speed — Crowded districts — Fencing — SI Vict., c. 29, ss. 197, 259 (,D.)—55 ti 56 Vict., c. 21, ss. 6 and 8 (D.)] — ^In passing through a thickly peopled portion of a city, town or village a railway train is not limited to the maximum speed of six mUes an hour prescribed by 55 & 56 Vict., c. 27, s. 8, so long as the railway fences on both sides of the track are maintained and turned into the cattle guards at highway crossings as provided by s. 6 of said Act. Judgment of the Court of Appeal (5 Ont. L. R. 313), reversed, Girouard, J., dissenting. Grand Trunk By. Co. v. McKay, xxxiv., 81. 95. Negligence — Dangerous way — Opera- tion of railway — Defective bridge — Gratuit- ous passengers — Liability of carrier for da/m- ages.] — In the absence of evidence of gross negligence, a carrier is not liable for in- juries sustained by a gratuitous passenger. IMoffat V. Bateman (L. R. 3 P. C. 115), followed, Harris v. Perry d Co. ([1903] 2 K. B. 219), distinguished.] — ^Although a railway company may have failed to prop- erly maintain a bridge under their control so as to ensure the safety of persons travel- liffg upon their trains, the mere fact of such omission of duty does not constitute evi- dence of the gross negligence necessary to maintain an action in damages for the death of a gratuitous passenger. Judgment ap- pealed from (9 B. C. Rep. 453), affirmed. Nightingale v. Union Colliery Co.s xxxv., 65. 96. Negligence — Railway company — Proximate cause — Imprudence of person in- jured.] — ^A railway train was approaching a station in London and the conductor jumped off before it reached it, intending to cross a track between his train and the station, contrary to the rule prohibiting employees to get off a train in motion. A light engine w^s at the time coming towards him on the track he wished to cross, which struck and killed him. The light engine was moving slowly and showed a red light at the end nearest the conductor, which would indicate that it was either stationary or going away from him. In an action by the conductor's widow she was non-suited at the trial, and a new trial was granted by the Court of Appeal. — Held, reversing the judgment of the Court of Appeal, Davies and Killam, JJ., dissenting, that as the light engine had been allowed to pass a semaphore beyond the station on the as- sumption, which was justified, that it would pass before the train came to a stop at the station, and as, if the deceased had not, contrary to rule, left the train while in motion, he could not have come into con- tact with said engine, the plaintiflE was not entitled to recover. — Held per Davies and KiBam, JJ., dissenting, that the act of the deceased in getting off the train when he did was not the proximate cause of the accident, and plaintiff was entitled to have the opinion of the jury as to whether or not deceased was misled by the red light. Grand Trunk Ry. Go. v. Birkett, xxxv., 296. 97. Negligence — Employer's Liability Act — Defect in ways, works, etc. — Care in mov- ing cars — Contributory negligence.] — O., a workman in the employ of defendant com- pany, was directed by a superior to cut sheet iron and to use the rails of the com- pany's railway track for the purpose. The superior offered to assist and the two sat on the track facing each other. 0. had his back to two cars standing on the track to which, after they had been working for a time, an engine was attached which backed the cars towards them, and 0. not hearing or seeing them in time was run over and had his leg cut off. — Held, that O. did not use reasonable precautions for his own safety in what he knew to be a dangerous situation and could not recover damages for such injury. — I{eld, also, that the em- ployees engaged in moving the ears were under no obligation to see that there was no person on the track before doing so. — Held, per S'edgewick, Nesbitt and Killam, JJ., that the want of a place specially pro- vided for cutting the sheet iron was not a defect in the ways, works, etc., of the com- pany within the meaning of s. 3 (o) of The Employers' Liability Act. — Held, per 987 EAILWAYS. 988 Girouard and Davies, JJ., that if it was such defect was not the cause of the injury to O. Dominion Iron and Steel Co. v. Oliver, xxxv., 517. 98. Negligence — Railway company — Ex- cessive speed — Fencing — Railway Act, 1888, ss. m, 197—55 & 56 Vict, c. 37, s. 6 (D.) — Evidence — Reasonable inferences.] — The provisions of 55 & 56 Vict., c. 27, s. 6 amend- ing s. 197 of The Railway Act, 1888, and re- quiring, at every public road crossing at road level of the railway, the fences on both sides of the crossing and of the track to be turned in to the cattle guards, applies to all public road crossings and not to those in townships only as is the case of the fenc- ing prescribed by s. 194 of The Railway Act, 1888. Grand Trunk Railway Go. v. McKay (34 Can. S. O. R. 81), followed.— Three persons were near a public road cross- ing when a freight train passed after which they attempted to pass over the track and were struck by a passenger train coming from the direction opposite to that of the freight train and killed. The passenger train was running at the rate of forty-five miles an hour, and it was snowing slightly at the time. On the trial of actions under "Lord Campbell's Act" against the railway company, the jury found that the death of the parties was due to negligence "in vio- lating the statute by running at an exces- sive rate of speed" and that deceased were not guilty of contributory negligence. A verdict for the plaintiff in each case was maintained by the Court of Appeal. — Held, that the railway company was liable ; that the deceased had a right to cross the track and there was no evidence of want of care on their part, and the. same could not be presumed ; and, though there may not have been precise proof that the negligence of the company was the direct cause of the accident, the jury could reasonably infer it from the facts proved and their finding was justified. McArthwr v. Dominion Cart- ridge Co. ( [1905] A. C. 72) , foUowed ; Wake- lin v. London d South Western Railway Co. (12 App. Cas. 41), distinguished. — Held, also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care ; that owing to the snow storm and the escaping steam and noise of the freight train they might well have failed to see the headlight or bear the approach of the passenger train if they had looked and listened. Qrand Trunk Railway Co. v. Hainer; Grand Trunk Railway Co. v. Hughes; Grand Trunk Railway Co. v. Bready, xxxvi., 180. 99. Operation of railway — Straying ani- mals — Negligence — Duty as regards tres- passers — Herding stock — Evidence — Infer- ences as to facts.]— A. railway company is not charged with any duty in respect of avoiding injury to animals wrongfully upon its line of railway until such time as their presence is discovered. Idington, J., dis- sented, though concurring in the judgment on other grounds. Canadian Pacific Rail- way Co. V. Eggleston, xxxvi., 641. 100. Joint operation of railway — Master and servant — NegUgence — Responsibility for act of joint employee — Traffic agreement — 62 & 63 Vict., c. 5 (Z).)] — Where by the negligence of the train despatcher engaged by the Grand Trunk Ry. Co. and under its control and directions, injuries were caused by a collision of two Intercolonial Railway trains on the single track of a portion of the Grand Trunk Railway operated under the joint traflic agreement, ratified by the Act, 62 & 63 Vict., c. 5 (D.), the company is liable, notwithstanding that the train despatcher was declared by the agree- ment to be in the joint employ of the Crown and the railway company, and the Orown was thereby obliged to pay a portion of his salary. Judgment appealed from af- firmed, Taschereau, C.J., chibitante. Grand Trunk Railway Co. v. Huard et at, xxxvi., 655. 101. Negligence — Finding of jury — Evi- dence.] — ^A. brought an action, as adminis- tratrix of the estate of her husband, against the C P. R. Co., claiming coimpensation for his death by negligence and alleging in her declaration that the negligence consisted in running a train at a greater speed than six miles an hour through a thickly populated district, and in failing to give the statutory warning on approaching the crossing where the accident happened. At the trial ques- tions were submitted to the jury, who found that the train was running at a speed of 25 mUes an hour, that such speed was dangerous for the locality, and that the death of the deceased was caused by neglect or omission of the company in failing to re- duce speed as provided by "The Railway Act." The verdict was entered for the plaintiff, and on motion to the court, en banc, to have it set aside and judgment entered for ' defendants a new trial was ordered on the ground that questions as to the bell having been rung and the whistle sounded should have been submitted to the jury. The plaintiff appealed to the Supreme Court of Canada to have the verdict at the trial restored and the defendants, by cross- appeal, asked for judgment. — Held, Iding- ton, J., dissenting, that by the above find- ings the jury must be held to have consid- ered the other grounds of negligence charged, as to which they were properly directed by the judge, and to have exonerated the de- fendants from liability thereon, and the new trial was improperly granted on the ground mentioned. — Held, also, that though there was no express finding that the place at which the accident happened was a thickly peopled portion of the district it was neces- sarily imported in the findings given above ; that this fact had to be proved by the plain- tiff, and there was no evidence to support it ; and that, as the evidence rfiewed it was not a thickly peopled portion, the plaintiff could not recover, and the defendants should have judgment on their cross-appeal. Andreas V. Canadian Paoifio Ry. Co., xxxvii., 1. 102. Negligence — Railway crossing — Find- ings of jury — "Look and listen."] — M. attempted to drive over a railway track which crossed the highway at an acute angle where his back was almost turned to a train coming from one direction. On ap- proaching the track he looked both ways, but did not look again just before crossing when he could have seen an engine approaching which struck his team and he was Idlled. In 989 EAILWAYS. 990 an action by his widow and children the jury found that the statutory warnings had not been given, and a verdict . was given for the plaintiffs and affirmed by the Court of Appeal. — Held, affirming the judgment of the Court of Appeal (12 Ont. L. R. 71), Fitzpatrick, C.J., hesitante, that the findings of the jury were not such as could not have been reached by reasonable men, and the verdict was justified. Wabash Railroad Co. V. Misener, xxxviii., 94. ■ 103. Negligence — Railway Act, 1903 — 3 Edw. VII., c. 58, s. 237 — Animals at large — Construction of statute — Words and terms — "At large upon the highway or otherwise" — Fencing of railway — Trespass from lands not belonging to owner.] — C.'s horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, which had not been provided with a gate by the company, and were killed by a train. There was no person in charge of the ani- mals, nor was there evidence that they got at large through any negligence or wUful act attributable to C. — Held, affirming the judgment appealed from (16 Man. K. 323), that, under the provisions of the fourth sub- section of s. 237 of "The (Railway Act, 1903," the company was liable in damages for the loss sustained notwithstanding that the animals had got upon the track while at large in a place other than a highway in- tersected by the railway. Canadian Pacific Ry. Co. V. Carruthers, xxxix., 251. 104. Operation of railway — Unnecessary combustibles left on right of way — "Rail- way Act, 1903" ss. 118 if) and 239— R. 8. G. (1906) a. 37, as. 151 (j) and 291— Damages by fire — Point of origin — Charge by judge — Finding by jury — Hew trial — Practice — New evidence on appeal — Su- preme Court Act, ss. 51 and 73.J — The ques- tion for the jury was, whether or not the place of the origin of the fire which caused the damages was within the limits of the "right of way" which the defendants were, by the "Railway Act, 1903,' obliged to keep free from unnecessary combustible mat- ter, and their finding was that it did, but the charge of the judge was calculated to leave the impression that any space where trees had been cut, under the powers con- ferred by s. 118 (j) of that Act, might be treated as included within the "right of way," and, in effect, made a direction, on issues not raised by the pleadings or at the trial, as to negligent exercise of the privilege conferred by that section. — Held, that, in consequence of the want of more explicit directions to the jury on the question of l&w and the misdirection as to the issues, the defendants! were entitled to a new trial. — The court refused an application by the respondents, on the hearing of the ap- peal, for leave to supplement the appeal case by the production of plans of the right of way which had not been produced at the trial, as being contrary to the established course of the court. (Leave to appeal to Privy Council granted, 24th February, 1908 ; 50 Can. Gaz. 544.) Red Mountain Ry. Co. V. Blue, xxxix., 390. 105. Negligence — Breach of statutory duty— Common employment — Nova Scotia Ry. Act, R. S. N. 8. (1900) c. 99, s. 251— Employers' Liability Act — Fatal Injuries /*J —Section 251 of the Railway Act ot Nova Scotia provides that when a train IS moving reversely in a city, town or vil- lage, the company shall station a person on the last car to warn i)er8ons standing on or crossing the track, of its approach, and pro- vides a penalty for violation of such provi- sion. — Held, that this enactment is for the protection of servants of the company stand- ing on or crossing the track as well as of other persons. — M. was killed by a train, con- sisting of an engine and coal car, which was moving reversely in North Sydney. No person was stationed on the last car to give warning of its approach, and as . the bell was encrusted with snow and ice it could not be heard. Evidence was given that on a train of the kind the conductor was supposed to act as brakesman and would have to be on the rear of the coal-car to work the (brakes, but when the car struck M., who was engaged at the time in keep- ing the track clear of snow, the conductor was in the cab of the engine. — Held, Iding- ton, J., dissenting, that an absolute duty was cast on the company by the statute to station a person on the last car to warn workmeii, as well as other persons, on the track which, under the facts proved, they had neglected to discharge. The defence under the doctrine of common employment, was, therefore, not open to them. Groves v. Wimborne, ([1898] 2 Q. B. 402), foUowed. — He^d, per Idington, J., that the evidence shewed the only failure of the company to comply with the statutory provision to have been through the acts and omissions of the fellow-servants of deceased ; that the com- pany, therefore, could not be held liable for the consequence under the "Fatal In- juries Act ;" that it is, therefore, unneces- sary to determine the applicability of the .said section of the "Railway Act," as the fellow-servants were guilty of common law negligence which rendered the company li- able, but only by virtue of and within the limits of the "Employers' Liability Act." (Leave to appeal to Privy Council, refused, 12th May, 1908) . McMullen y. Nova Scotia Steel and Coal Co., xxxix., 593. 106. Collision — Stop at crossing — St'itu- tory rule — Company's rule — Contributory negligence— R. 8. 11906] c. 37, s. 278.]— A train of the Wabash Railroad Co. and one of the Canadian Pacific Railway Co. ap- proached a highway crossing at obtuse angles. The former did not, as required by s. 278 of the Railway Act, come to a full stop ; the latter did so at a semaphore nearly 900 feet from the crossing and receiving the proper signal proceeded without stopping again at a "stop post" some 400 feet nearer where a rule of the company required trains to stop. The trains collided and the engineer of the Canadian Pacific Railway Co. was killed. In an action by his widow : — Held, that the failure of the engineer to stop the second time was not contributory negligence which prevented the recovery of damages for the loss of plaintiff's husband caused by the admitted negligence of defendants. Wa- bash Rd. Co. V. McKay, xl., 251. 991 RAILWAYS. 993 lOT. Qperptioti of. railway — NegUge^ce — Non-suit.} — The action was by a brakesman for damages in respect of injuries incurred by him while in discharge of his duty through the negligence of servants of the company in checking the speed of the train, on which he was working, too suddenly, so that a part of the train became detached. The jury found for plaintiflf, and the trial judge granted a non-suit, althoug'h he was inclined to the view that the plaintiff had made put a case. The non-suit was set aside by the Divisional Court.— The Su- preme Court of Canada dismissed the ap- peal with costs for the reasons given in the Divisional Court, Gwynne, J., dissent- ing. Lake Erie and Detroit River Ry. Go. V. Soott, Cout. Cas. 211. 108. Negligence — Operation of railway — Dangerous way — Passenger jumping off train.'] — Plaintiff jumped off a car when the train had become derailed. Other passen- gers who remained on the train were not injured. The charge of negligence was tuat the company had allowed the ties to become rotten, fiius causing the rails to spread and resulting in the derailment. The defence was that if the plaintiff had not unneces- sarily jumped off the car he would have escaped injury. The appeal was dismissed with costs. Halifaos and Southwestern Ry. Co. V. Shea, Cout. Cas. 418. 109. Operation of railway — Level crossing Negligence — Statutory signals — Findings against weight of evidence — New trial — Practice.1 — S. sustained injuries through running into the engine of a railway train wbUe he was riding a bicycle over a level highway-crossing. On the trial of his ac- tion to recover damages, his witnesses stated that they had not heard the whistle sounded nor the bell of the engine rung, and he ad- mitted that be had not taken any precau- tions to ascertain whether he could cross the track in safety. The evidence for the defence was positive as to the statutory signals being properly given, as well as other warnings of danger: — Held, per Fitz- patritk, C.J. and DufE, J., that the question was not as to the credibility of the wit- nesses on either side, but whether the char- acter of the evidence for the plaintiffs could, in a reasonable view of the whole evidence adduced, be held to countervail the direct and positive testimony on behalf of the de- fendants, and, as it could not, the findings by the jury that the company had been guilty of negligence in failing to give the statutory signals were against the weight of evidence and unreasonable. — Per Girouard, J., that S. was guilty of contributory negli- gence in failing to take proper precautions to avoid the accident and the action should be dismissed. Railroad Company v. Hous- ton (95 U. S. R. 697), referred to.— The judgment appealed from was reversed and a new trial ordered, Idington and Maclen- nan, JJ., dissenting. Orand Trunk Ry. Co. v. Sims, 8 Can. Ky. Cas. 61. 110. British Columbia Railway Act — Fire on right-of-way — Combustible matter . on berm — Origin of fire — Damage to adjoining property — Negligence — Evidence — Practice — New points raised on appeal.'] — In an ac- tion against a railway company subject "to the British Columbia Railway Act, if there is no evidence that the company had knowl- edge or notice of the existence of a fire on their right-of-way, not caused by the opera- tion of the railway, the fact that the condi- tion of the right-of-way facilitated the spread of the fire to adjoining property which was destroyed by it does not amount to action- able negligence. — Where a matter relied upon to suppoH the action was not urged at the trial nor asserted on an appeal to the provincial court it is too late to put it for- ward for the first time on an appeal to the Supreme Court of Canada. — Judgment appealed from (14 B. C. Rep. 168), af- firmed, Idington, J., dissenting. Laidlaw V. Crowsnest Southern Ry. Co., xlii., 355. 111. Construction of statute — 7 \£ 8 Edw. IV., c. 31, s. 2 — Oovernment railway — Fire from engine — Negligence — Damages.] — ^By 7 & 8 Edw. IV., c. 31, s. 2, the Government of Canada is liable for damage to property caused by a fire started by a locomotive working on a government railway, whether its officers or servants are or are not negli- gent, and by a proviso the amount of dam- ages is limited if modem and efficient ap- pliances have been used and the officers or servants "have not otherwise been guilty of any negligence." — Held, Davies, J., dissent- ing, that the expression "have not other- wise been guilty of any negligence" means neg'ligeuce in any respect and not merely in the use of a locomotive equipped with mod- ern and efficient appliances.-— Sparks from a locomotive set fire to the roof of a gov- ernment building near the railway track, and the fire was carried to and destroyed private property. The roof of this building had On several previous occasions caught fire in a similar way and the goveimment of- ficials, though notified on many of such oc- casions, bad only patched it up without repairing it properly. — Seld, reversing the judgment of the Exchequer Court (12 Ex. C. .R. 389), that the government officials were guUty of negligence in having a build- ing with a roof in such condition so near to the track, and the owner of the property destroyed was entitled to recover the total amount of his loss. Leger v. The King, xliii., 164. 112. Action — Damages — Denial of traffic facilities — Injury by reason of operation of railway — Limitation of actions — "BoiJtooj/ Act," 3 Edw. VII., c. 58, s. 2^2— Construc- tion of statute.]— Injuries suffered through the refusal by a railway company to fur- nish "reasonable and proper facilities for receiving, forwarding and delivering freight, as required by the "Railway Act," to and from a shipper's warehouse, by means of a private spur-track connecting with the rail- way, do not fall within the classes of in- juries described as resulting from the con- struction or operation of the railway in s 242 of the "Railway Act," 3 Edw. VII., c! 58, and, consequently, an action to recover damages therefor is not barred by the limi- tation prescribed by that section for the commencement of actions" and suits for in- demnity. — Judgment appealed from (19 Man. R. 300), affirmed, Girouard and Da- vies, JJ., dissenting. Canadian Northern Railway Co. v. Robinson, xliii., 387. 993 BAILWAYS. 994 113. Accident — Negligence — RaAlway rules — Special instructions — Defective sys- tem — Common law negligence — Workmen's Compensation Act.} — The "Kailway Act" prescribes that rules and regulations for travelling upon and the use or working of a railway must be approved by the Governor- General in Council and that, until so ap- proved, such rules and regulations shall have no force or effect ; when approved they are binding on all persons. Rule 2 of the rules of th« Grand Trunk (Railway Co. pro- vides that "In addition to these rules, the time-tables wiU contain special instructions, as the same may be found necessary. Spe- cial instructions, not in conflict with these rules, which may be given by proper auth- ority, whether upon the time-tables or other- wise, shall be fully observed while in force." Trains running out of Brantford, Out., are under control of the train despatcher at London. The railway time-taWe has for many years contained the following foot- note : — "Tilsonburg Branch. — Yard engines at Brantford are allowed to push freight trains up the Mount Vernon grade and re- turn to Brantford B. & T. station without special orders from the train despatch«r. Yard foreman in charge of yard engine will be held responsible for protecting the re- turn of the yard engine, and for knowing such engine has returned before allowing a train or engine to follow. — A. J. Nixon, Assist- ant Superintendent." — This regulation or in- struction had not then been submitted for the approval of the Governor-General in Council. — By rule 224 "all messages or orders respecting the movement of trains . . . must be in writing." — Held, Daviea and Duff, JJ., dissenting, that assuming the foot-note on the time table to be a "special instruction" under Rule 2, it is inconsistent with the train-despatching system in force at Brantford and if, as the evidence indicates, it purports to authorize the sending out of engines under verbal orders to push freight trains up the grade, it is also inconsistent with rule 224. Such instruction has, there- fore, no legal operation. — Held, per Gir- ouard and Anglin, JJ., that it was not a "special instruction," but a regulation, and not having been sanctioned by order-in- council operation under it was illegal. — ^By "The Railway Act" a "train" includes any engine or locomotive. R,ule 198 provides that it "includes an engine in service with or without cars equipped with signals." — Held, per Girouard, Idington and Anglin, JJ., Duff, J., contra, that an engine return- ing to the yard after pushing a train up the grade, is a "train" subject to the provisions of Rule 224, and to the rules _ of the train-despatching system. — ^The accident in this case occurred through the yard foreman failing to protect the engine on its return to the yard. — Held, Davies and Duff, JJ., dissenting, thafi the company oi*erated the yard engines under an illegal system, and were liable to common law damages and that S.-S. 2 of s. 427 of the "Railway Act' ap- plied. — Held, per Duff, J., that since, , as re- gards the danger of collision with trains stop- ping at Brantford for orders, the system of operating the yard engines through the tele- graphic despatchers would clearly have af- forded greater protection than that in use, and since there was admittedly no impediment in the way of adopting the former system, there was evidence for the jury of want of care in not adopting the safer system; and the fact that the existing system had been in operation for twenty-five years was evidence from which the jury might infer that the general governing body of the company was aware of it. And further, following Smith V. Baker ((1891) A. C. 325), and Ainslie Mining and Railway Go. v. McDougall (42 Can. S. C. R. 420), that, in these -circum- stances, the company was responsible for the defects in the system. Fralick v. Grand Trunk Railway Co., xliii., 494. 114. Negligence — Carriers — Operation of railway — Defective system — Gratuitous pas- senger — Free pass — Limitation of liability — Employer and employee — Fellow-servant — Evidence — Onus of proof.} — The plaintiff's husband was an employee engaged as a mechanic in the company's workshops and was travelling thither to his work on one of the company's passenger cars, as a pas- senger, without payment of fare. A freight ear became detached from a train, soiiie distance ahead of the passenger car and proceeding in the same direction ; it ran backwards down a grade, collided with the passenger car and the plaintiff's husband was killed. The manner in which the freight car became detached was not shewn. On the body of deceased there was foimd a per- mit or "pass," which was not produced, and there was no evidence to shew any con- ditions in it, nor over what portion of the company's lines nor for what purposes it was to be honoured. On the close of the plain- tiff's case the defendants adduced no evi- dence whatever, and the jury found that the company was at fault, owing to a defective system of operation of their trains, and assessed damages, at common law, for which judgment was entered for the plaintiff. — Held, that there was a presumption that de- ceased was lawfully on the passenger car and, in the exercise of their husiness as common carriers of passengers, the company were, therefore, obliged to use a high de- gree of care in order to avoid injury being caused to him through negligence ; that there was nothing in the evidence to shew that deceased occupied the position of a fellow- servant with the employees engaged in the operation of the trains which were in col- lision ; and that, in the absence of evidence shewing any agreement, express or implied, or some relationship between the company and deceased which would exclude or limit liability, the plaintiff was entitled to re- cover damages at common law. — Judgment appealed from (16 B. C. Rep. 113), affirmed. Nightingale v. Union Colliery Co. (35 Can. S. C. R. 65), distinguished. British Co?- umiia Electric Ry. Co. v. Wilkinson, xlv., 263. 115. Negligence — Risk of employment — Dangerous works and materials — Warnings and instructions — Employers' liahility — Damages — Personal injury — Limitation of action — "Railway Act," R. 8. C, 1906, c. 37, s. 308 — "Construction and operation of railway."] — The limitation of one year, in respect of actions to recover compensation S.c:D.-r32 995 EAILWAYS. 996 for injuries sustained "by reason of the construction or operation" of railways, pro- vided by s. 306 of the "Railway Act" (R. S. C, 1906, c. 37), relates only to injuries sustained in the actual ■construction or opera- tion of a railway ; it does not apply to cases where injuries have been sustained by employees engaged in works undertaken bj a railway company for procuring or pre- paring materials which may be necessary for the construction of their railway. Canadian Northern By. Go. v. RoMnson ((1911) A. C. 739), applied. Judgment appealed from (21 Man. R. 121), affirmed. (Leave to appeal to Privy Council refused, 20th March, 1912.) Canadian Northern Ry. Co. v. An- derson, xlv., 355. And see Negligence. 116. Negligence — Operation of railway — Death from contact with train — Absence of eye witness — No warning at crossing — Find- ings of jury — Reasonable inferences — Bal- ance of probabilities.] — About 5.30 on a De- cember afternoon, G. left his place of em- ployment to go home. An hour later his body yas found some 350 yards east of a crossing of the Grand Trunk iRailway, nearly opposite his house. There was no witness of the accident, but it was shewn on the trial of an action by his widow and children, that shortly after he was last seen an ex- press train and a passenger train had passed each other a little east of the crossing, and there was evidence shewing that the latter train had not given the statutory signals when approaching the crossing. The jury found that G. was killed by the passenger train, and that his death was due to the negligence of the latter in falling to give such warnings. This finding was upheld by the Court of Appeal. — Held, that the jury were justified in considering the balance of jn-obabilities and drawing the inference from the circumstances proved, that the death of •G. was caused by such negligence. Grand Trunk Ry. Go. v. Griffith, xlv., 380. 117. Operation of railway — Condition of yard — "Lay-out" of concourse — Switching — "Workmen's Compensation for Injuries Act," R. S. M. 1902, c. 178 — Contributory negligence — Evidence — Volenti non fit injuria — Non-suit — New trial.} — At the trial, an order of non-suit was refused by the plaintiff and, thereupon, the jury were directed to find a verdict for the defendants, which was done and judgment entered ac- cordingly. On an appeal by the plaintiff this judgment was set aside, 20 Man. R. 92, on the ground that there was some evidence which should have been left to the jury, and a new trial was ordered. — The Supreme Court of Canada allowed the appeal with costs, Idington and Duff, JX., dissenting, and the judgment entered at the trial was restored. [Note. — The Judicial Committee of the IPrivy Council refused leave for an appeal in formd pauperis, 20th March, 1912 ; 45 Can. S'. C. R. vii.] Canadian Pacific Railicau Co. v. Wood, xlvii., 403. 118. Statute — Construction — Operation of railway — Right-of-way — Combustible mater- ials— R. S. N. S. [1900] c. 91, s. 9.]— Chapter 91, s. 9, of the Revised Statutes of Nova Scotia, 1900, provides that "when railways pass through woods the railway company shall clean from off the sides of the road- way the comibustible material by careful burning at a safe time or otherwise." — Held, that this provision is imperative and obliges the company at all times to keep its right- of-way so clear of combustible material that it will not be a source of danger from fire. Clearing it at certain periods only is not a compliance with such provision. — ^Duff, J., dissented on the ground that it was not proved that the fire in this case originated on the right-of-way. — Judgment appealed from (46 N. S. Rep. 20), affirmed. Halifatv and South Western Railway v. Schwartz, xlvii., 590. 119. Negligence — Contravention of statute — Protection of employees — Foreign car — Defective equipment — R. 8. C. [1908] c. 37, s 264, ss. lie).] — The provisions of s. 264, s.-s. 1(c) of The Railway Act, which require every railway company "to provide and cause to be used on all trains modern and efficient apparatus" for coupling and uncoupling cars without the necessity of go- ing between them is contravened by the use of a foreign car not provided with such "modem and efficient apparatus" in a train operated by a Canadian company, and the company using such car is responsible for any injury caused by the want of such equipment. A lever for opening and closing the knuckle of the coupler which is too short to be operated from the side ladder with safety is not "modern and efficient apparatus" under the above provision. — Where a brakeman on a car approaching an- other with which it was to be coupled saw that the knuckle of the coupler of the car he was on had to be . opened and had only fifteen seconds in which to do it, being un- able to signal the engineer to stop, took the only course open to him, which was a common one, and was injured, he was not guilty of contributory negligence. — ^Fitzpat- rick, C.J., dissented, on the ground that the plaintiff's negligence was the sole cause of the accident. — Judgment of the Court of Appeal (26 Ont. L. R. 121), reversed, Fitz- patrick, C.J., dissenting, xlvii., 634. 120. Operation — Negligence — Excessive speed — Trespasser — "Railway Act," R. S. C, 1906, c. 37, ss. 275, 408— Cause of acci- dent.] — While ai train was running at the speed of about thirty miles an hour, on the company's line along the harbour front in the City of Vancouver, B.C., H., who had unlawfully entered upon the right-of-way through a break in the company's fences, at tempted to cross the tracks in front of the train. The engine driver saw H., at a dis- tance of about 500 feet, and whistled several tipies. H. paid no attention to the danger signals and continued walking in an oblique ■direction towards the track, and, observing his apparent intention to cross the track and his disregard of the signals, the engine driver then applied the emergency brakes which failed to stop the train in time to avoid the accident by which 'H. was killed. In an action for damages by his widow and chi\d.— Held, that, notwithstanding the fact that deceased was a trespasser and commit- ting a breach of s. 408 of the "Railway Act," R. S. C, 1906, c. 37, the company was liable because their engine, driver neg- yj: EAILWAYS. 998 lected to apply the emergency brakes at the time he became aware of the danger of ac- cident when he first noticed deceased at- tempting to cross the tracks. Canadian Pacific Railway Go. v. Einrich, xlyiii., 557. 121. Evidence — Onus — Negligence — Exces- live speed — "Railway Act," s- 275 — 8 & 9 Edw. VII., c. 3S, s. IS.]— By 8 & 9 Edw. VII., c. 32, s. 13, amending s. 275 of the "Railway Act" no railway train "shall pass over a highway crossing at rail level in any thickly peopled portion of any city, town or village at a greater speed than ten miles an hour" unless such crossing is constructed and pl-otected according to special orders and regulations of the Railway Committee or Board of Railway Commissioners or per- mission is given by the Board. In an ac- tion against a railway company for dam- ages on account of injuries received through a train passing over such a crossing at a greater speed than ten miles an hour. — Held, reversing the judgment of the Appel- late Division (29 Out. L. R. 247), that the onus was on the company of proving that the conditions existed which, under the pro- visions of said section, exempted them from the necessity of limiting the speed of their train to ten miles an hour or that they had the permission of the Board to exceed that limit, and as they had not satisfied that onus the plaintiff's verdict should stand. — Sub-section 4, of s. 13, prohibits trains running "over any highway crossing" at more than 10 miles an hour, if at such cross- ing an accident has happened subsequent to 1st January, 1900, "by a moving train caus- ing bodily injury," et«., "unless and until" it is protected to the satisfaction of the Board.— Per Duff and Brodeur, JJ.— The appellant's action could also be maintained on the ground that the prohibition of s.-s. 4 applies to the crossing in question. The Grand Trunk Railway Co. v. McKay (34 Can. S. C. R. 81), distinguished. Bell v. Grand Trunk Railivay Co., xlviii., 561. 122. Operntion — Transfer of cars — Inter- switcliing — Negligent coupling — Duty of train crew — Scope of employment — jE/m- ployer's UahilHy — Master and servant — Jury — Findings of fact — Evidence.'] — A train crew of the defendants while performing their duty in the transfer yard of another railway company were directed by the yard- master to remove a special car of freight which was to be transferred to the defend- ants" railway from amongst a number of other cars in the yard. In order to do so it was necessary to sbunt several cars placed in front of the car to be transferred, and the train crew switched these cars to certain tracks on which there was then standing a train of the other railway com- pany, headed by an engine under which the fireman, plaintiff, was then working. They undertook to couple the cars which they were switching to the standing train, as a matter of convenience, and, in doing so, struck the rear of the train with such force as to move the engine and cause injuries to the fireman who was working under it. Specific questions were not submitted to the jury, notwithstanding suggestions made by de- fendants' counsel after the judge had charged them, and they returned a general verdict in favour of the plaintiff. — Held, afiirming t^e judgment appealed from (24 Man. R 544), that in so proceeding to couple the cars they had switched or to the standing tram the defendants' train crew were still actmg within the scope of their employ- ment m the defendants' business and, as tbey performed the work in a negligent man- ner, the defendants were liable in damages for the injuries caused to the plaintiff — Per DufE, J. — The question, whether the acts of negligence of the company's servants were done in course of their empdoyment was a question of fact for the jury in respect of which there was o-^idence to support their finding in favour of the plaintiff. Grand Trunk Pacific Railway Co. v Pick- ering, 1., 393. 123. Shipping contract — Carrying person in charge of lii^e stock — Free pass — Release from hahility — Approved form — Negligence — Action ty dependents — Conflict of laws — '■Railway Act," R. S. C, 1906, c. 37, s. SJfO.] —The shipping bill for live stock, to be car- ried from Manitoba to its destination in the province of Quebec, was in a form approved by the Board of Railway Commissioners and provided that, if the person in charge of the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or in- jury whether caused by the negligence of the company or of its servants. C. travelled by the train in charge of the stock upon a "Live-Stock Transportation Pass" and signed conditions indorsed in English there- on by which he assumed all risks of injury and released the company from liability for damages, to person or property while travel- ling on the pass, whether caused by negli- gence or otherwise. While the train was passing through the province of Ontario, an accident happened through the negligence of the company's employees and 0. was killed. In an action by his dependents, instituted in the province of Quebec, it was shewn that C. could neither read nor write, except to sign his name, and that he only undei-- stood enough English to comprehend orders in respect of his occupation as a stook-man ; there was no evidence that the nature of the conditions was explained to him : — Held ( Pitzpatrick, C.J., dissenting), that the rail- way company was liable for d.images in the action by the dependents. — Per Davios. IJ- ington, Duff and Brodeur, JJ. (Pitzpatrick, C.J., and Anglin, J., contra), that, as C. could not have known the nature of the conditions or that they released the com- pany from liability, and the company had not done what was reasonably sufficient to give him notice of the conditions on which he was being carried, the company was liable in damages either under the law of Ontario or that of Quebec. — Per Anglin, J. — Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an ac- tion would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie. though the wrongful act had been committed in Ontario, as it was of" a class actionable in Ontario. Ma- chado V. Fontes ((1897), 2 Q. B. 231). ap- plied — Section 340 of the "Railway Act," 999 RAILWAYS. 1000 R S. C, 1906, ch. 37, provides that "no contract, condition, ... or notice made or given by the company impairing, restrict- ing or limiting its liability in respect of the carriage of any trafiBc shall . . . relieve the company from such liability unless such class of contract . . . -shall have been first authorized or approved by order or regulation of the Board. (2) The Board may in any case or by regulation, deter- mine the extent to which the liability of the company may be so impaired, restricted or limited." The Board of Railway Com- missioners made an interim order permit- ting the use by the company, until otherwise . determined, of the shipping form used, but did not expressly authorize the form con- taining the conditions signed by deceased, — • Held, per Fitzpatrick, C.J., and Davies and Anglin, J J. (Idington, Duff and Brodeur, JJ., contra), that the contract signed by deceased was one of a class of contracts au- thorized by the Board. — Per Duff, J. — The contract signed by deceased could not have the effect of limiting the liability of the company in respect of death because it was not in a form authorized or approved by the Board of Railway Commissioners and there had been no order or regulation made by the Board expressly determining the ex- tent to which the company's liability should be impaired, restricted or limited as pro- vided by s.-s. 2 of s. 340 of the "Railway Act." — Judgment appealed from, affirming the judgment of the Superior Court (Q. R. 46 S. C. 319) affirmed. Canadian Pacific Railway Co. v. Parent, li., 234. 124. Right-of-way — Clearance of combus- tible matter — Burning wtorn-out ties — In- jury from spread of fire — Limitation of ac- tion — "Operation of the railway" — "Rail- way Act" {R. S. C. [1906] c. 37, ss 297, 306).] — Held, per Fitzpatrick, C.J., and Duff, Anglin and Brodeur, JJ., that when worn-out ties are burned by a railway com- pany on its right-of-way in performance of the duty imposed by s. 297 of the "Railway Act" to keep the right-of-way free from un- necessary combustible matter any damage or injury resulting therefrom is caused by reason of the "operation of the railway" within the meaning of that phrase in s. 306, and the right of action for such damage or injury is prescribed by one year. — Per Duff, J. — The injury in such case may be caused by reason of the "operation of the railway" though the company, in burning the ties, was not performing the duty imposed by s. 297. — Per Davies and Idington, JJ., dis- senting. — By s.-s. 2 of s. 306 the applica- tion of the section is limited to cases in which the injury was caused "in pursuance of and by the authority of this Act or of the special Act" and as the burning of the ties was not so authorized the prescription could not be relied on — Held, also, Idington, J., dissenting, that s.-s. 4 of s. 306 did not pre- vent the application of the provision in s.-s. 1 for limiting the time in which action could be brought. — The decision of the Ap- pellate Division (32 Ont. L. R. 104) main- taining the judgment at the trial (31 Ont. L. R. 419) was affirmed. Greer v. Cana- dian Pacific Railway Co., li., 338. 125. Negligence — Ejecting trespasser from mating train — Imprudence — Liability for act of servant — Master and servant.] — ^As a train was moving away from a station, where it had stopped, the conductor ordered a brakeman to eject two trespassers from it. On proceeding to do so the brakesman found a man stealing a ride upon the narrow ledge of the engine-tender and, in a scuffle which ensued, the plaintiff, who was on the edge of the ledge but was not seen by the brakesman owing to the darkness, was pushed off the train and injured. In an action for damages, the jury found that the brakesman had been at fault in attempting to eject the man whom he saw whUe the train was in motion and that it was "dubi- ous" whether he was aware of the presence of the plaintiff in the dangerous position. — Held, per Fitzpatrick, C.J., and Idington and Anglin, JJ., affirming judgment ap- pealed from (9 West. W. R. 1052), that the reckless indifference of the brakesman, in circumstances in which he ought to have been aware of the presence of the plaintiff, was a negligent act for which the railway company was liable. — Per Davies and Bro- deur, JJ., dissenting. — ^As it was not shewn by the evidence nor found by the jury that the brakesman was aware of the presence of the plaintiff in a dangerous position the plaintiff, being a trespasser, could not re- cover damages against the company for the injuries he sustained. Canadian Northern Railway Co. v. Diploch, liii., 376. 126. Negligence — Construction of statute —"Railway Act," R. S. C. 1906, c. 37, ^. 306 — Constitutional law — "Civil rights'' — Jurisdiction of Dominion Parliament — Pro- vincial legislation — "Employers' Liability Act," R. S. M., 1913, 0. 61 — Paramount au- thority — "Operation of railway" — Limita- tion of actions — Conflict of laws.] — An em- ployee of a Dominion railway company sus- tained injuries while engaged in unloading rails from a car alleged to have been un- suitably equipped for such purposes. The unloading of the rails was for the conveni- ence of the company in using them to replace other rails already in use on the constructed tracks. An action was brought to recover damages, under the Manitoba "Employees' Liability Act," R. S. M., 1913, c. 61, within two years from the time of the accident, the limitation provided by s. 12 of that Act, but after the expiration of the limitation of one year provided, in respect of actions against Dominion railway companies, by the first sub-section of s. 306 of the "Railway Act," R. S. C, 1906, c. 37. The fourth sub-sec- tion of s. 306 provides that such railway companies shall not be relieved from liabil- ity under laws in force in the province where responsibility arises. — Held, affirming the judgment ~ appealed from (25 Man. R. 655), that, in the exercise of authority in respect of railways subject to its jurisdic- tion, the Parliament of Canada had power to enact the first sub-section of s. 306 of the "Railway Act," R. S. C, 1906, c. 37, pro- viding a limitation of one year for the com- mencement of actions against Dominion railway companies for the recovery of dam- ages for injury sustained by reason of the 1001 EAILWAYS. 1003 construction or operation of the railway. Chrand Trunk Bway. Co. v. Attorney-Gen- eral for Canada ((1907) A. C. 65), ap- plied. — Per Fitzpatrick, C.J., and Davies, Anglin and Brodeur, JJ. (Idington, J., con- tra). — The fourth sub-section of s. 306 of the "Railway Act," R. S. C, 1906, c. 37. does not so qualify the limitation provided by the first sub-section thereof as to admit the application, in such cases, of a different limitation provided under provincial legis- lation. Greer v. Canadian Pacific Rway. Co. (51 Can. S. C. R. 338), foUowed.— The unloading of rails for the convenience of a railway company to be used in replacing those already in use on the constructed per- manent way is included in "operation of the railway" under the first sub-section of s. 306 of the "RaUway Act," R. S. C, 1906, c. 37. Idington, J., contra. — The judgment ap- pealed from (25 Man. R. 655), was re- versed, Idington, J., dissenting. Canadian Northern Railway Co. v. Psaenicuzy, liv., 36. 127. Protection of crossings — Party inter- ested — Powers of Parliament, xsxvii., 232. See Railways. 128. Defects in road-ied — Dangero-as way — Tis major — Onus of proof — Latent de- fects, xxxvii., 632. See Railways. 129. Operation of railway — Yard siding — Sloping platform — - Private passage — Dan- gerovs way — Negligence — Procedure at trial — Objections to charge to jury — Practice, xl., 194. See Practice. 130. Negligence — Contributory negli- gence — Accident at crossing — Life insurance — Deduction from damages — Practice — Ap- peal — Equal division of opinion — Costs, Cam. Cas., 228. See Negligence. 131. Station huildings — Dangerous way — Invitation or license — Breach of duty — Negligence — Questions for jury. Cam. Cas., 262. See Negligence. 132. Operation of railway — Negligence — Moving train — Regulations — Personal lia- lility of employee — Estoppel, Cam Cas. 589. See Negligence. 133. Negligence — Tort — Liahility of the Crotrn — Demise of the Grown — Personal ac- tion — Release — Operation of railway — Gom^ mon employment — Exchequer Court Act, 50 & 51 V. c. 16. s. 16 (c) — Appeals to Privy Council, xli., 71. See Negligence. 134. Negligence — Operation of railway — Damages' — Solatium dolbris — ■ Verdict — New trial. G. P. R. v. Lachance, xlii., 205. See Damages. 135. Negligence — Electric railway ■ — Breach of company's rules. Winnipeg Elec- tric Railway Go. v. Bill, xlvi., 654. 136. Negligence — Findings of jury Yo- lens — Pleading. Grand Th-unk Ry. Co v Brulot, xlvii., 629. 137. Fire insurance — Insuram.ce on lum- *er — Conditions — Warranty — Railway on lot — Security to hank — Chattel mortgaqe.. xlvii., 216. ■^ ' See Instteance, Fibe. 138. Negligence — Operation of tramway — Passenger riding on platform — Dangerous arrangement of car — Evidence, xlvii., 395. See Negligence. 139. Negligence — Operation of railway — ■ Protection of passenger — Evidence — Mere conjecture, xlvii., 397. See Negligence. 140. Negligence — Tramway — Explosion — Defective controller — Inspection, xlvii., 612. See Tramways. 141. Negligence — Operation of tramway — - Carelessness of person injured — Reckless conduct of motorman. City of Calgary v. Harnovis, xl-viii., 494. See Negligence. 142. Action — Damages — Timier on pre- empted lands — Rights of pre-emptor — B. C. "Land Act," R. S. B. C, 1911, c. 129, ss. 77 et seg. and 132 — Negligence — Fire set by railway locomotive, xlix., 33. See Damages. 143. Practice — Action by dependents — B. G. "Families Compensation Act" — Re- lease by deceased — Defence to action — Re- pudiation — Fraud — Setting aside release — Personal representative — Right of action — Return of money paid — Limitation of ac- tions — General statutory provision — Car- riers — Private Act — B. C. "Consolidated Railway Company's Act" — Statute — R.S.B. C, 1911, c. S2, — "Lord Campbell's Act" — (B.C.) 59 V. c. 55, s. 60, xlix., 470. See Practice and Peocedube. 144. Negligence — Operation of tramway — Employers' liability — Accident in course of employment — "Workmen's Compensation Act" — Right of action — Dependent relations — Construction of statute — (Que.), 9 Edw. VII., c. 66, ss. 3, 15— R. S. Q. 1909, arts. 7321, 7323, 7335 — Incompatible enactment — Repeal — Art. 1056 G. C. — Practice- Charge to jury — Misdirection — Excessive damages — Modification of verdict — New trial — Art. 508 C. P. Q. Lamontagne v. Quebec R. R., Light, Heat and Power Co., }., 423. See Negligence. 145. Operation — Equipment — Coupling apparatus — Duty to provide and maintain — ■ Protection of employees — Inspection — "In- evitable accident" — Findings of jury— Evi- dence — Common employment — Conflict of la%cs— "Railway Act," R. S. C, 1906, c. 37, s. 264 — Construction of statute — Vis major, li., 113. See Negligence. 1003 RAILWAYS. lOOi 146. Negligence — Operation of railway — Unsafe roadbed — Speed of trains — Disobedi- ence of orders — Answers by jury — • "Lord Campbell's Act" — Injury sustained outside province — Right of action in Manitoba, lii., 227. See Negligence. 147. Damages — Verdict — Excessive award — Personal injuries — Complete reparation — Loss of prospective earnings — Pain and suffering — Evidence — Mortuary tables — Practice — New trial. C. P. R. v. Jackson. lii., 281. ;Siee Damages. 148. System of construction — Exposed switch-rods — Negligence — Dangerous contri- vance — Verdict — Findings against evidence, liii., 323. See Negligence. 10. Subsidies. 149. Appeal — Jurisdiction — Discretion of Oovernor in Council — Stated case— Railway subsidies — Construction of statute — S Edw. VII., c. 57 — Conditions of contract — Esti- mating cost of constructing line of railway ■ — Rolling stock and equipment.] — Where the juriscliction of the Supreme Court of Canada to entertain an appeal was in doubt, but it was considered that the appeal should be distaiased on the merits, the court heard and decided the appeal accordingly. (Cf. Bain v. Anderson & Go. (28 Can. S. C. K. 481). — The provisions of the Act, 3 Edw. VII. c. 57, authorizing the granting of sub- sidies in aid of the construction of railways are not mandatory, but discretionary in so far as the grant of the subsidies by the Government in Council is concerned.— On a proper construction of the said Act it does not appear to have been the intention of Parliament that the cost of rolling stock and equipment should be included in the cost of construction in estimating the amount of subsidy payable to the company in aid of the "Pheasant Hills Branch" of their rail- way under the provisions of that Act, not- withstanding that the said Act did not espe- cially exclude the consideration of the cost of equipment in the making of such esti- mate as had been done in former subsidy Acts with similar objects, and that the Governor in Council imposed the duty of efficient maintenance and equipment of the branch as a condition of the grant of the subsidy. Canadian Pacific Ry. Co. v. The King {Re Pheasant Hills Branch), xxxviii.. 137. 150. Railway aid — Provincial subsidy — ■ Construction of statute — 60 Vict. c. Ji, s. IS (Que.) — 5J/ Vict. c. 8S, s. 1 j. (Que.) — Breach of ■conditions — Compromise by Crown officers — Obligation binding on the Crown — Right of action — Extension of rail- way — Application of subsidy.] — The suppli- ants claimed that by the Quebec statutes, 54 Vict. c. 88 and 60 Vict. c. 4, a balance was due them on subsidy in aid of the Bale des Chaleurs Railway ; that the subsidy was attributable to the first 60 miles from Meta- pedia towards Gaspg Basin, that such sub- sidy was subject only to the conditions in the second part of s.-s. 1/ of the Act, 54 Vict, and that the Provincial Government was bound by the terms of a transaction with the Lieutenant-Governor in Council compromising for the land subsidy at a rate per acre in cash. The Supreme Court af- firmed the judgment appealed from (Q. R. 15 K. B. 120), dismissing the petition of right and holding that the subsidy applied to the 80 miles terminating at or near GaspS Basin, and that the construction placed on the statutes by officers of the Crown in ef- fecting the compromise and part payment in money gave the suppliants no right of ac- tion against the Crown for the balance claimed by them. DeOalindez et al. v. The King, xxxix., 682. 151. Constitutional law — Railway aid, — • Land subsidy — Grown lands — Interests of private owner — "Free grant" — "Owner" — "Real property."] — • The Dominion sta- tute, 53 Vict. c. 4, authorized the granting of aid for the construction of a railway by a subsidy in Crown lands, and, by s. 2, it was declared that such grants should be "free grants" subject only to the payment, on the issue of patents therefor, of the costs of survey and incidental expenses, at the rate of ten cents per acre. The lands in question formed part of the land subsidy, earned by the railway company and re- served and set apart for that purpose by order-in-council, which had been conveyed by deed poU to the appellants by the rail- way company prior to the issue of a Crown grant. While still iinpatented, these lands had been rated for taxes and condemned for arrears of taxes under the statute of Al- berta, 7 Edw. VII. c. -iX.—Held, that the interest of the appellants in the said lands was subject to taxation and liable to be dealt with under the provincial statute, al- though letters patent of grant thereof by the Crown had not issued. — Held, also, that allotment of these lands as "free grant*" under the subsidy Act, related only to ex- emption from the usual charges made in respect of public lands by or on behalf of the Crown, except the cost of survey, etc., and did not exempt the appellants' interest therein from taxation under the provisions of the provincial statute, although neither the legal estate nor any interest therein re- maining in the Crown could be liable to tax- ation. — Judgment appealed from (2 Alta. L. R. 446), affirmed. Rural Municipality of North Cypress v. Canadian Pacific Rail- way Co. (35 Can. S. C. R. 550), distin- guished. Calgary & Edmonton Land Go. v. Attorney-General of Alberta, xlv., 170. And see Statute. 152. Tiile to land — Railway aid — Land grant — Crown patents — Doniinion Lands Regulations — Reservation of minerals — Con- struction of statute — 53 Vict. c. 1^ — R. S. G. (1886) c. 54 — Free grants — Parliamentary contract, Cout. Cas. 271. See Title to Land. 153. Construction of statute — Assessment and taxes — Imposition of taxes — R S N S. [1900] cc. 70, 73, xxxv., 98. • • • See Assessment and Taxes. 1005 EATEPAYEE. 1006 154. Statute — Consti-uotion. — Applica- tion — Taxation — Exemption — Frontage lots — Local improvements, 63 & 6^ V. c. 57 a. 18 J c. 58, s. 22 {Man.)—B. S. M., 1902, c. 166 J 10 Edw. VII., c. Ih (Man.), liv , 589. See Assessment and Taxes. 12. Othee JIatteks. 155. Constitutional law — Railway com- pany — Negligence — Agreements for exemp- tion from liability — Power of Parliament to prohibit.'] — An act of the Parliament ot Canada providing that no railway company within its jurisdiction shall be relieved from liability for damages for personal injury to any employee by reason of any notice, con- dition or declaration issued by the company, or by any insurance or provident associa- tion of railway employees ; or of rules or by-laws of the company or association ; or of privity of interest or relation between the company and association or contribution by the company to funds of the association ; or of any benefit, compensajtion or indemnity to which the employee or his personal re- presentatives may become entitled to or ob- tain from such association ; or of any ex- press or implied acknowledgment, acquit- tance or release obtained from the association prior to such injury purporting to relieve the company from liability, is intra vires of said Parliament. Nesbitt, J., dissenting. (Appeal to Privy Council dismissed, [1907] A. C. 65). In re Railway Act, 190Jf, xsxvi., 136. 156. Judicial sale of railways — Interested bidder — Disqualification as purchaser — Counsel and solicitors — Art. 1484 C. C. — ■ Construction of statute — Discretionary order — Review by appellate court — 4 & 5 Edw. VII. c. 158 (D.)— Public policy.'] — Solici- tors and counsel retained in proceedings for the sale of property are not within the classes of persons disqualified as purchasers by article 1484 of the Civil Code of Lower Canada.— The Act, 4 & 5 Edw. VII. c. 158. directed the sale of certain railways separ- ately or together as in the opinion of the Exchequer Court might be for the best in- terests of creditors, in such mode as that court might provide, and that such sale should have the same effect as a sheriff's sale of immoveables under the laws of the Province of Quebec. The judge of the Ex- chequer Court directed the sale to be by tender for the railways en bloc or for the purchase of each or any two of the lines of which th^y were constituted. — Seld, that the judge had properly exercised the discre- tion vested in him by the statute in accept- ing a tender for the whole system, in pre- ference to two separate tenders for the sev- eral lines of railway at a slightly increased amount, and that his decision should not be disturbed on appeal. Judgment appealed from (10 Ex. C. R. 1391), affirmed. Rut- land Railroad Go. v. Beique; "White v. BMque; Morgan v. B4ique, xxxvii., 303. 157. Constitutional laic — Legislative juris- diction — Application of statute — "The Prairie Fires Ordinance" — Con. Ord. JV. W. T. {1898) c. 87, s. 2—N. W. T. Ord. 1903, c 2 Ont. L. R. 200) , that by extinguishing the interest of the mining company in the land and then seUing it V. & Co. had put it out of their power to place C. in the position he was entitled to. occupy on making payment and had thus disabled themselves from en- forcing their judgment. Vivian v. Clcrgue, li., 527. 43. Deferred payment — Omission oT note — Completion of contract — Acceptance T>y pur- chaser — New term — Instruments of title — .Delivery — Arts. 1025, 1235, i/,73, Ufil- lJ,91f, 1533, 153^ C. a.]— A contract for the sale of land, in the Province of Quebec, by which the date of the deferred payment of an instalment of the price is not fixed is, nevertheless, according to the .law of that province, a completed contract of which spe- cific performance may be enforced. (Duff and Brodeur, JJ., contra.)— In his letter accepting the offer of sale, the purchaser re- quested the vendor to send to his notary the documents of title and the registrar's certi- fied abstract of the deeds affecting the pro- perty. — Held, per Fitzpatrick, C.J., and Anglin, J., that this request did not intend the stipulation of a new term to the con- tract. — Per Brodeur, J. — Although the ven- dor is obliged to furnish the documents of title, including the registrar's certified ab- stract, yet, in the present case, as it_ ap- peared that the vendor made it a condition that the titles and certificate were not to be delivered into the possession of the pur- chaser the request in the letter of accept- ance was a stipulation of a new term which left the contract incomplete. La Banque Ville Marie v. Kent (Q. R. 22 S. C. 162), and Sauve v. Picard (20 Rev. de Jur. 142) , referred to. — Judgment appealed from (Q.R. 1047 SALE. 1048 23 K. B. 495), affirmed. Lareau y. Poirier, li., 637. 44. Construction of deed — Mortgage or tale — Equity of redemption. McLean V. McKay, Gout. Gas. 334. 45. Contract — Resolution 'by municipal corporation — Acceptance of offer to pur- chase — Evidence — Written instructions-— Statute of Frauds — Estoppel, xxxiv., 132. See GoNTRACT. 46. Contract — Deceit and fraud — Rescis- sion ■ — Evidence — Concurrent findings of lower courts — Duty of second appellate court, xxxiv., 145. See GONTBACT. 47. Construction of contract — Custom of trade — Arts. 8 and 1016 C. C. — Sale of goods — Delivery, xxxv., 274. See Contract. 48. Construction of agreement — Sale of goods — Breacli of contract — Specific per- formance — Damages, xxxv., 482. See GONTKACT. 49. Sale of land — Vendor and purchaser — Formation of contract — Conditions — Ac- ceptance of title — New term — Statute of Frauds — Principal and agent — Secret com- mission — Avoidance of contract — Fraud — Specific performance, xxxviii., 588. See GoNTKACT. 50. Agreement for sale of land — Principal and agent — Estoppel — "Land Commissioner" — Specific performance, xxxix., 169. See Specific Performance. 51. Contract for sale — Time of essence — Delay of vendor — Description — Statute of Frauds — -Specific performance — Vendor and purchaser. Anderson v. Foster, xlii., 251. 52. Agreement for sale of lands — Corv- struction of contract — Right of action — Par- tition — Administration hy co-owners — TVust — Interim account — Partial discharge of trustees. Angus v. Beinxe, xlii., 416. See Trusts. 53. Contract — -Supplying electrical energy — Delivery — Condition — Payment at fiat rate — Ohligation to pay for pressure not utilized — 'SoZe of commodity — Agreement for service. Montreal v. Montreal Light, Heat, etc., xlii., 431. See Gontbact. 54. Vendor and purchaser — Sale of land — Condition — Approval of assignments — - EquitaUe estate or interest- — Priority be- tween transferees — Principal and agent — Fraudulent and criminal practices — Notice of previous transfer — Implied knowledge. MacLeod v. Sawyer-Massey Co., xlvi., 622. 55. Vendor and purchaser — ■Sole of land — Condition dependent — Deferred payment Disclosure of title — Abstract — Refusal to complete — Lapse of time — Defeasance — Spe- cific performance, xlvii., 114. See Vendor and Purchaser. 56. Vendor and purchaser — Agreement — Bond to secure payment of price — Condi- tions as to title, Colwell et al. v. Neufeld, xlviii., 506. 57. Sale of land — Contract — Defeasance — "Time to he of the essence of the contract" -^Deferred payments — Notice after default — Laches — Abandonment — Specific perform- ance, xlix., 14. See Specific Performance. 58. Vendor and purchaser — Agreement for sale of land — Option — Acceptance — Uncer- tainty as to terms — Condition precedent — Specific performance, xlix., 211. See Vendor and Purchaser. 59. Vendor and purchaser — 'Sale of land — Payment by instalments — Specified dates — Time of essence — Forfeiture — Penalty — Pay- ment declared to be deposit, xlix., 360. See Vendor and Purchaser. 60. Illicit contract — Lottery — Sale of land — Subsequent purchaser — Action petitoire — Right of recovery— Ultra vires — Legal max- im — "Extra turpi coMsd non oritur actio" — Notary — Official of purchasing company — Validity of deed. Prevost v. Bedard, li.. 149. See Contract. 61. Constitutional law — Provincial legis- lation — Succession duties — Taxation — Pro- perty within province — Bona notabilia — Sale of lands — Covenant — Simple contract — Specialty — Construction of statute — Sever- able provisions — R. S. M., 1902, c. 161, s. 5 —4 d 5 Edw. VII. c. 45, s. 4 (Man.)— -Ap- peal — Jurisdiction. Re Muir, li., 428. See GoNSTiTUTiONAL Law. 62. Contract — Sole of coal areas — - Pay- ment in company stock — Unorganized com- pany — Time for delivery. Roche v. John- son, liii., 18. See Contract. 63. Contract — Foreign lands — Exchange — Specific performance — Jurisdiction of courts of equity — Mutuality of remedy — Re- lief in persona/m — Discretionary order — Ap- peal — Jurisdiction — "Final judgment" — "Supreme Court Act," R. S. C. 1906, o. 139, s. S8c, liii., 431. See Specific Performance. 64. Mechanic's lien — Loan company — Agreement for sale — Advances for building — "Owner" — Request — Privity and consent —Mortgagee— R. 8. O., [ISW^ c. HO, ss. 2 (1), 8 (S) and U {2)—"Mechanics' Lien Act," liv., 569. See Lien. 3 (1) Contract by Broker or Agent. 65. Principal^ and agent — Broker — Sale of land — Commission for procuring purchaser — Company law — Commercial corporation Contract — Powers of general manager.] A land broker volunteered to make a sale of 1049 SALE. 1050 real estate owned by a trading corporation and obtained, from the general manager, a statement of , the price, and other particu- lars with that object in view. He brought a person to the manager who was able and willing to purchase at the price mentioned and who, after some discussion, made a de- posit on account of the price and proposed a slight variation as to the terms. They failed to close and the manager sold to an- other person on the following day. The broker claimed his commission as agent for the sale of the property, having found a qualified purchaser at the price quoted.— Meld, affirming the judgment appealed from (14 Man. Rep. 650), Taschereau, C.J., and Girouard, J., dubitante, that the broker could not recover a commission as he had failed to secure a purchaser on the terms specified. Under the circumstances, as the owner did not accept the purchaser pro- duced and close the deal with him, there could be no inference of the request neces- sary in law as the basis of an obligation to pay the plaintiff a commission. Calloway v. Stohart Sons and Co., xxxv., 301. 66. Principal and agent — Sale of land — Authority to make contract — Specific per- formance.'] — ^The defendant gave a real es- tate agent the exclusive right, within a sti- pulated time, to sell, on commission, a lot of land for $4,270 (the price being calcu- lated at the rate of $40 per acre on its sup- posed area), an instalment of .$1,000 to be paid in cash and the balance, secured by mortgage, payable in four annual instal- ments. The agent entered into a contract for sale of the lot to the plaintiff at $40 per acre, $50 being deposited on account of the price, the balance of the cash to be paid "on acceptance of title," the remainder of the purchase money payable in four consecu- tive yearly instalments and with the privi- lege of " paying off the mortgage at any time." This contract was in the form of a receipt for the deposit and signed by the broker as agent for the defendant. — Held, affirming the judgment appealed from (15 Man. Rep. 205) ; that the agent had not the clear and express authority necessary to confer the power of entering into a contract for sale binding upon his principal. — Beld, further, that the term allowing the privilege of paying off the mortgage at any time was not authorized and could not be enforced against the defendant. Oilmour v. Simon, xxxvii., 422. 67. Principal and agent — Sale of mining iand — Commission — Change of purchaser — Continued transaction.] — M., owner of min- ing lands, agreed to give G. a commission for effecting a sale thereof. G. introduced a purchaser to M. and a contract for sale of the lands to said purchaser was executed. This was replaced by a later contract by which the sale price was reduced in con- sideration of an incumbrance on the pro- perty being paid off by the purchaser who borrowed the money for the purpose and as- signed his interest in the contract to the lender, also signing a release in favour of M. of any claim against him on the con- tracts. M. afterwards sold the mining lands to a person buying for the lenders of the money to pay off the incumbrance. In an action by G. for his commission: — Held, that he was entitled to the commission on the full amount received for the land as finally sold.— Held, also, that the sale of the land was not a transaction independent of the contract with the purchaser introduced by G., but was a continuance thereof. Judg- ment appealed from affirmed, Davies, J., dis- senting. Glendinning v. Cavanagh, xL, 414. 68. Broker — Purchase on margin — Non- payment — Sale without notice — Liability of customer — Damages. Sutherland v. Securi- ties Holding Co., xxxvii., 694. 69. Sale of lands — Conditions — Deposit of price — Compliance with instructions — Ven- dor refusing to complete — Broker's commis- sion — Remuneration for procuring pur- chaser.] — A broker instructed to sell lands for a price to be deposited in a bank pend- ing arrival of clear title, procured a pur- chaser who made the deposit to his own credit without appropriating it to any spe- cial purpose. On refusal by the vendor to complete the bargain, the broker sued him for a commission of remuneration for the services rendered: — Held, reversing the judgment appealed from (1 Sask. L. R. 247), Idington, X, dissenting, that therft had not been such compliance with the terms of the instructions as would entitle the broker to recover commission or re- muneration for his services in procuring a purchaser. Reser v. Yates, xli., 577. 70. Principal and agent — Broker selling on grain exchange — Contract in broker's name — Liability of principal — "Futures" — "Margins" — "Options"~-Board rules — In- demnity, xli., 61. See Beokee. 71. Broker — Principal and agent — Com- mission on sale of land — Introduction of purchaser — Efflcient cause of sale — Comnle- tion of contract on altered terms, xliv., 395. See Bkokee. 72. Sale of land — Principal and agent — Secret profit by brokei Participation in breach of trust — Implied partnership — Lia- bility to account — Purchaser in good faith — Disclosure of suspicious circumstances — Cross-appeal— Parties — Practice, xliv., 543. See Bbokek. 73. Principal and agent — Sale of land — Commission. Langley v. Rowlands, xlvi., 626. 74. Broker — Sale of land — Principal and agent — Disclosing material information — Secret profit — Vendor and purchaser — Agent's right to sell or purchase — Specific performance, xlvi., 477. See Brokee. 75. Crown lands — location — Public policy — Evasion of statute — B. C. "Land Act," S Edw. ril. c. 30, ss. SJ,, 36Sale of Crown lands — • Principal and agent — Commission on sales — Quantum meruit — Tainted con- tract. Brownlee v. Mcintosh, xlviii., 588. See Ceown Lands. 1051 SALE. 1052 76. Broket — -Sale of land — Commission — General employment — • Principal and agent — Intfodttotion of purchaser — Interference hy principal — Quantum meruit — Variation of written contract — Evidence — (Alta.), 6 Edw. VII. u. 21, xlix., 1. See Beokee. 77. Sale of lands — Agreement to pay com- mission — Named price — Introduction hy agent — Q-eneral retainer — Sale at lower price — Right of action — Alberta statute, 6 Edw. VII., 0. 21, s. 1, xlix., 75. See Beoker. 78. Vendor and purchaser — Agreement for sale — Agent to procure purchaser Agent joining in purchase — Non-disclosure to co- purchaser — Payment of commission — Rescis- sion of contract, xlix., 403. See Vendoe and Pxjechasbe. 79. Broker — Transactions on change — Principal and agent — Action — Evidence — Parol testimony — Arts. 1206, 1233, 1235 V. C, liv., 131. See Bkokee. 3 (c) Evidence and Executions. 80. Sale of goods — Condition as to prices — Lost invoices — -Secondary evidence — Waiver — Breach of contract — Damages.'i — The de- fendants agreed to purchase the plaintiff's stock-in-trade at a valuation to be based upon an advance of 13 per cent, on the in- voice prices of the good® when taken into stock. On stock being taken by the parties the plaintiff was unable to produce invoices for a large portion of the goods, but in. sisted that their prices could be ascertained from private markings on the packages which, she alleged, represented the prices taken from the missing invoices. Differ- ences arose between the parties respecting the prices of these goods, but the inventory was closed with the prices, as they had been marked on the packages, carried into the valuation columns. The defendants refused to complete the purchase on account of fail- ure to produce the invoices in question and the action was brought to recover damages for breach of the contract. — Held, reversing the judgment appealed from (2 D. L. R. 293; 1 West. W. R. 1103), Duff, J., dis- senting, that the consent of the defendants to the closing of the inventory with the prices in question stated according to the information obtained from the private mark- ings constituted satisfactory proof of the fulfilment of the original agreement, and, consequently, damages could be recovered for breach of the contract to purchase. — Per Duff, J., dissenting. — There could be no contract capable of enforcement until the prices of the whole of the stock had been ascertained in the manner contemplated by the agreement, and the closing of the in- ventory with prices supplied from the un- verified statements of the plaintiff did not constitute a new contract varying the con- dition in the agreement as to the fixing of the prices to be paid. Therefore, no action could lie to recover damages for breach of the contract to purchase. Periard v. Ber- geron, xlvii., 289. 81. Title to land — Lease for years — Pos- session hy suh-tenant — Purchase at sheriff's sale — Adverse occupation^— Evidence — Con- veyance of rights acquired — Compromise — Waiver — Estoppel, Cout Oas. 158. See Title to Land. 82. Consideration — Exchange of proper- ties — Mortgage — Indemnity to vendor — Evi- dence, liv., 28. See Moetgage. 83. Sale of goods — Owner not in posses- ion — Authority to sell — Secret agreement — Estoppel.} — The owner of logs, by contract in writing, agreed to sell and deliver them to McK., the title not to pass until they were paid for. The logs being in custody of a boom company an order was given to deliver them as agreed. E., a dealer in lum- ber, telephoned the owner asking if he had them for sale and was answered "No, I have sold them to McK." E. then purchased a portion of them from McK., who did not pay the owner therefor and he brought an action to recover the price from B. — Seld, affirming the 'judgment appealed from (36 N. B. Rep. 169), Nesbitt and Killam, JJ., dissenting, that the owner having induced E. to believe that he could safely purchase them from McK. could not afterwards deny the authority of the ■ latter to sell. — Meld, per Nesbitt and Killam, JJ., that as there was no evidence that the owner knew the identity of the person making the inquiry by telephone, and nothing was said by the latter to indicate that he would not make further inquiry as to McK's authority to sell, there was no estoppel. — Held, per Tas- chereau, C.J., that as the owner had given McK. an apparent authority to sell, and knew that he had agreed to buy for that purpose, a sale by him to a hon& fide pur- chaser was valid. Peoples Bank of Halifax v. Estey, xxxiv., 429. 84. Servitude — Construction of deed — Purchase of dominant and servient tene- ments — JOnity of ownership — Extinction of servitude — Revival hy sale of dominant tenement — Effect of sheriff's sale — Purga- tion of apparent servitude — Reference to former deed creating charge — Lost deed — Evidence, xli., 217. See Servitude. 3(d) Fraud, Deceit and Misrepresentation. 85. Sale of lands — Warranty — Latent de- fects — Sa?e or exchange — Dation en paie- ment — Misrepresentation — Fraud — Errors — Rescission of contract — Damages.'i — Where the vendor has sold, with warranty, a building constructed by himself, he must be presumed to have been aware of latent defects and, in that respect, to have acted in bad faith and fraudulently in making the sale. — The vendor, defendant, in the agree- ment ifor sale, represented that a block of buildings which he was selling to the plain- 1053 SALE. 1054 tiff had been constructed by him of solid stone and brick and so described tbem in formal deeds subsequently executed relating to the sale. The walls subsequently began to crack, and it was discovered that a por- tion of the buildings had been fcuiLt of framed lumber filled in and encased with stone and brick in a manner to deceive the purchaser. — Beld, that the contract was vitiated on account of error and fraud and should be set aside, and that, as the vendor knew of the faulty construction, he was liable, not only for return of the price, but also for damages. — Held, also, that the nature of the contract depended upon the intentions of the parties as disclosed by the last instrument signed by them, in relation thereto. — In the present case the sale was made in part in consideration of vacant city lots given in payment pro tanto, and during the time the defendant was in pos- ession of the lots he erected buildings upon them with his own materials. — Held, that, even if the contract amounted to a con- tract of exchange, it was subject to be re- scinded in the same manner and for rea- sons similar to those which would avoid a sale, and, if the contract be set aside for bad faith on the part of the defendant, th& plaintiff has options similar to those men- tioned in articles 417, 418, 1526 and 1527, of the Civil Code, that is to say, he may either retain the property built upon, on payment of the value of the improvements, or cause the defendant to remove them without injuring the property, or compel the defendant to retain the property built upon and to pay its value, besides having the right to recover damages according to the circumstances. — The judgment appealed from was reversed. Pagnuello v. Choquette, xxxiv., 102. 86. Executor and trustee — Sale of trust property to wife — Inadequate consideration — Account — Jurisdiction of Probate Court.'] — An executor sold property of the estate for $800, his wife being the purchaser. On pas- sing of the accounts the judge of probate found as a fact that the property was worth $1,800 and ordered that the executor ac- count for the difference. — Held, that the executor having really sold the property to himself secretly for an inadequate price he was properly held liable to account for its true value. — Held, also, that though the Probate Court could not set aside the sale it had jurisdiction to make such order. Re Daiy; Daly y. Brown, xxxix., 122. 87. Action for deceit — Agreement for sale — False representations ■ — Compromise — 'Notice.'] — P., living in Montreal, owned stock in a CoTjalt mining company, and D., of Ottawa, looked after his interests therein. Being informed by D. that the mine was badly managed and the property of little value, and that other holders were selling their stock, P. signed an agreement to sell his at par. D. assigned this agreement to a third party. Later P., learning that the stock was selling at a premium and believ- ing that he had made an improvident bar- gain, entered into negotiations with the holder of his agreement, and a compromise was effected by a portion of P.'s holdings being sold to the assignee at par and the remainder returned to him. It transpired afterwards that D. and the assignor were m collusion to get possession of the stock, and P. brought action against D. for dam- ages. — Held, that the compromise having been effected when P. was in ignorance of the real state of affairs, it did not bind him as against D., from whom be could re- cover as damages, the difference between the par value of his remaining shares and their market value at the date of such com- promise. — Judgment of the Court of Appeal (12 Ont. W. K. 824), reversed and that of the trial judge (9 Ont. W. R. 380), af- firmed by a Divisional Court (11 Ont. W. R. 127), restored. Pitt v. Dickson, xlii.! 478. 88. Misrepresentation — Deceit — Contract — "Warranty. Mey v. Simpson, xlii., 230. 89. Contract — Rescission — Sale of land — Misrepresentations — Affirmance.] — B. adver- tised for sale his farm in Ontario, stating the contents and describing it as in first- class condition. He also stated the num- ber of trees, old and new, in the orchard then on it. S., then in British Columbia, was shewn the advertisement and, after some correspondence in which B, reiterated the statements therein, came to Ontario and spent some time in inspecting the farm, which he finally purchased on B.'s terms and entered into possession. Shortly after he leased the orchard for ten years, and within a day or two discovered that the farm contained over forty acres less than, and the contents of the orchard were only half of, what had been represented ; also that the farm was not in the condition stated, but badly overrun with noxious weeds. — He, therefore, procured the cancel- lation of the lease of the orchard and brought action to have the sale rescinded. — Held, that the lease of the orchard was not, under the circumstances, an affirmance of the contract for sale which would dis- entitle S. to rescission ; that if it were an affirmance as to the orchard the subsequent discovery of the other misrepresentations would entitle him to a decree. Campbell v. Fleming (1 A. & E. 40), distinguished. Boulter v. Stocks, xlvii., 440. 90. Sale of land — Deceit — Misrepresenta- tion — Honest belief — Pleading — Amendment — Adding new cause of action.] — On the ap- peal of Macf arlane, one of the defendants, to the Supreme Court of Canada, from the judg- ment of the (Supreme Court of Saskatche- wan (3 Sask. L. R. 446), after hearing counsel on behalf of both parties, the court reserved judgment, and, on a subsequent day, the appeal was allowed with costs, Id- ington, J., dissenting. Macfarlane v. Davis, xlvii., 399. 91. Mines and mining — "Vendor and pur- chaser — Sale of mining locations — Consid- eration in lump sum — Separate valuations — Misrepresentation — Deceit and fraud — Measures of damages, xxxvi., 279. See Vendor and Pubchasek. 92. Mortgage — Sale under power — False bidding — Withdrawal of bid. Eaiserhoff Hotel Co. V. Zuber, xlvi., 657. 1055 SALE. 1066 3(e) Redemption. 93. Vente d rimir^, — Redemption — Term — Judicial proceedings — Art. 1550 O. 0.] — Article 1550 of the Civil Code does not oblige the vendor, in a vente d r4mir4, to take judicial proceedings for redemption within the time stipulated in the deed. It is sufficient that, within such time, he signi- fies to the vendee his intention to redeem. Duff and Anglin, JJ., dissented. — ^Judgment appealed from (Q. R. 25 K. B. 464), af- firmed. Johnson v. Laflamme, liv., 495. 94. Privileges and hypothecs — Tramway — Operation on highway — Title to land — Im^ mohilization by destination — Sale of irom- way iy sheriff as a "going concern" — Un- paid vendor — Lien on price of cars — Pledge — Construction of statute, S Edw. VII., o. 91 (Que.) — Priority of claim — Collocation and distribution— Arts. 379, 2000 C. 0. — Art. 752 Mun. Code. Ahearn k£ Soper v. N. Y. Trust, xlii., 267. See Pkivileges and Hypothecs. 3(f) Rescission. 95. Vendor and purchaser — Condition of agreement — Sale of land — Payment on ac- count of price — Cancellation — Notice — Re- turn of money paid — Rescission — Form of action — Practice.] — An agreement for the sale of lands acknowledged receipt of $600 on account of the price and provided, in the event of default in the payment of deferred instalments, that the vendor might, on giv- ing a certain notice, declare the' agreement null and void and retain the moneys paid by the purchaser. On default by the pur- chaser to make payments according to the terms of the agreement the vendor served him with a notice for cancellation which incorrectly recited that the contract con- tained a stipulation for its cancellation, in case of default, "without notice," and con- cluded by declaring the contract null and void "in accordance with the terms thereof as above recited." The vendor, subsequently, refused a tender of the unpaid balance of the price and re-entered into possession of the lands. In an action by the purchaser for specific performance or the return of the amount paid, rescission was not asked for. — Seld, that, as the vendor had not given the notice required by the conditions of the agreement he could not retain the money as forfeited on account of the pur- chaser's default; that, as the payment had not been made as earnest, but on account of the price, the purchaser was entitled to recover it back on the cancellation of the contract, and that, as the relief sought by the action could not be granted while the contract subsisted, a demand for rescission must necessarily be implied from the plain- tiff's claim for the return of the money so paid. March Bros. & Wells v. Banton, xlv., 338. 3 (g) Specific Performance. 96. Agreement for the sale of land — Falsa demonstratio — Position of vendor's signa- ture — Specific performance.']- — On the con- clusion of negotiations between C. and B. as to the sale of two city lots on the cor- ner of Hastings Street and Westminster Avenue, in Vancouver, BO., C. signed a document as follows : — "Vancouver, June 28th, 1902. — ^Received from James Borland the sum of ten dollars, being a deposit on the purchase of Lots No. 9 and 10, Block No. 10, District Lot 196, purchase price twenty thousand dollars ($20,000.00), bal- lance to be paid within (10 July) days, when I agree to give the said James Borland a deed in fee simple free from all incum- brances. — (Sgd. ) Jos. Cbote, N. W. Cor. Hastings & Westr. Ave." — The lots on the comer of the streets mentioned were, in fact, lots 9 and 10 in block 9, and were the only lots defendant owned. In an action for specific performance of the agree- ment for sale of the lands the trial judge found that these were the lots intended to be sold, and also that the words below the signature formed part of the receipt. — Held, affirming the judgment appealed from (10 B. C. Rep. 493), Killam, J., dissenting, that the inaccuracy of the description in the receipt was a mere discrepancy which should be disregarded and the decree made for specific performance in respect of the lots actually bargained for between the parties. (Leave to appeal to Privy Council refused, 5th July, 1905.) Coote v. Borland, xxxv., 282. 97. Specific performance — Agreement for — Inability to perform — Liability to dam- ages — Diminution in price.] — A lease of land for ten years provided that on its termination the lessee could by giving notice, purchase the fee for $22,000. In a suit for specific performance of this agreement. — Held, applying the rule in Bain v. F other- gill (L. R. 7 H. L. 158), Fitzpatrick, C.J. and Davies, J., dissenting, that if the les- sor, without fault, was unable to give title in fee to the land the lessee was not en- titled to damages for loss of his bargain. — Per Fitzpatrick, C.J. and Davies, J. — The above rule should not 'be applied in a case like this, where the lease contained onerous conditions binding the lessee to expend large sums in improving the property, and it must have been contemplated by the parties that such expenditure would have caused him special damage if he could not purchase the fee. — Judgment appealed against (32 Ont. L. E. 243), affirmed. Ontario Asphalt Block Co. V. Montreuil, lii., 541. 98. Agreement for sale of lands — Transac- tions with co-trustees — Necessity of joint action — Delegation of trust — Specifio per- formance of contract, xxrvii., 362. See Trttsts. 99. Vendor and purchaser — Mortgaged lands — Agreement — Condition precedent — Cash payment — Default — Objection to title — Repudiation — Specifio performance, xlvi., 555. See Vendor and Pdbchasee. 100. Sale of lands — Agreement for re-sale — Novation — Rescission — Specifio performr ance — Defence to action — Practice Evi- dence — Statute of Frauds — Principal and agent — Agent purchasing — Disclosure Findings of faot, xlix., 384. See Specific Peefobmance. 1057 SALE. 1058 101. Specific performance — Lease of land — Option for purchase — Acceptance of new lease — Waiver of option. Mathewson v. Bums, 1., 115. iSee Lease. 102. Landlord and tenant — Lease of land — Special condition — Promise of sale — Op- tion — Facte de pr4f4rence — Unilateral con- tract — Real rights — Registry laws — • Arts. 2082, 2085 C. G.—Specific performance — Damages — Right of action, li., 603. See Landlord and Tenant. 103. Municipal corporation — Assessment and taxes — Meetings of council — Court of Revision — Transaction of business outside limits of municipality — Place of voting — Revision of assessment rolls — By-laws — Sale for arrears of taxes— Construction of statute — Statutory relief — Estoppel — Acquiescence — Laches — Limitation of action, xlv, 425. See Municipal Corporation. 3 (ft) Tax Sales. 104. Taxes — Sale of land for arrears — Pur- chase by municipality — Failure to give notice — Curative Act — Evidence — Discovery — Death of deponent — Use of deposition at trial. Cartwright v. City of Toronto, 1., 215. See Assessment and Taxes. 105. Assessment and taxes — Purchase by municipality — Failure to give notice — Cura- tive Act — Evidence — Discovery ■ — Death of deponent — Use of deposition at trial, 1., 215. See Assessment and Taxes. 106. Sale for delinquent taxes — Tax sale deed — Premature delivery — Statutory auth- ority — Condition precedent — Evidence — Pre- sumption — Curative enactment — Certificate of title {B.C.). Heron v. Lalonde, liii., 503. See Assessment and Taxation. 3(j) Other Cases. 107. Judicial sale of railways — Interested bidder — Disqualification as purchaser — Counsel and solicitors — Art. H84 C. C. — Construction of statute — Discretionary order — Review by appellate court — 4 <^ 5 Edw. VII., c. 158 (D.) — Public poZicj/.]— Solici- tors and counsel retained in proceedings for the sale of property are not within the classes of persons disqualified as purchasers by article 1484 of the Civil Code of Lower Canada.— The Act, 4 & 5 Edw. VII., c. 158, directed the sale of certain railways sep- arately or together as in the opinion of the Exchequer Court might be for the best interests of creditors, in such mode as that court might provide, and that such sale should have the same effect as a sheriff's sale of immovables under the laws of the Province of Quebec. The judge of the Ex- chequer Court directed the sale to be by tender for the railways en bloc or for the purchase of each or any two of the lines of which they were constituted. — Eeld, that the judge had properly exercised the discre- tion vested in him by the statute In accept- ing a tender for the whole system, in prefer- ence to two separate tenders for the several lines of railway at a slightly increased amount, and that his decision should not be disturbed on appeal. Judgment appealed from (10 Ex. C. R. 139) affirmed. Rutland Railway Co. v. Biique; White v. Biique; Morgan v. BMgue, xxxvii., 303. 108. Contract — Agreement for sale of land — Deferred conveyance — Default in payment -^Remedy of vendor — ■ ' Reading "or" as "and."] — ^Where, in accepting an offer by V. for sale of land, C. undertook to pay cer- tain instalments of the purchase money be- fore receiving the deed V. could sue for recovery of unpaid instalments, his remedy not being confined to an action in damages for breach of contract. Laird v. Pirn (7 M. & W. 474), distinguished.— The offer having been accepted by C. for "myself, pr assigns," to avoid holding the contract void for uncertainty as to the purchaser's iden- tity, the word "or" was read as "and." Id- ington, J., dissenting, on this point. — Judg- ment of the Court of Appeal (16 Ont. L. R. 372), maintaining that of a Divisional Court (15 Ont. L. R. 280), affirmed. Clergue v. Vivian d Co., xli., 607. 109. Sale of land — Constitutional law — Imperial Acts in force in Yukon Territory — Title to land — Torrens System — Transfer by registered owner — Fraud — Litigious rights — Notice of lis pendens — Irregular registration — Indorsements upon certificate of title — Construction of statute — Pleading — Objections taken on appeal — Yukon Ter- ritorial Court Rules ' — Yukon Ordinances, 1902, c. n— Rules 113, 115, Ut—Waiver— Estoppel, xxxvi., 251. See Title to Land. 110. Equitable mortgage — Mines and min- erals — Lease of mining lands — Sheriff's sale — Purchase by judgment creditor of mort- gagee — Registry laws — Priority — Actual notice—Lien for Crown dues paid as rent — G. S. N. B. (1903), c. 30, s. 139, xxxTvii., 517. See Mines and Mining. 111. Tenant by sufferance — Use and occu- pation of lands — Art. 1808 C. C. — Promise of sale — Vendor and purchaser — Reddition de compte — Actio ex vendito — Practice, xxxvii., 627. See Action. 112. Title to land — Promise of sale — Entry in land register — Tenant by suffer- ance — Squatter's rights — Possession in good faith — Eviction — Possessory action — Com- pensation for improvements — Rents, issues and profits — Set-off — Tender of deed — Re- strictive conditions — Evidence — Arts, ill, m, W, U9, 120i, 1233, im, W8 C. C. xxxix., 47. See Action ; Title to Land. s.c.D. — 34 1059 SALE. 1060 113. Damages — Trespass— G-utting timher — Sale to hand fide purchaser — Action iy owner of land, xl., 399. See Damages. 114. Negligence — Sale of ruined huilding — Personal responsibility of vendor, xli., 259. See Negligence. 115. Grown lands — Colonization — Looor tion ticket — Transfer ly locatee — Issue of letters patent — Title to land — Registry laws —Notice — Arts. H81, im, 2082, 2085, 2098 G. G. Howard v. Stewart, 1., 311. See Cbown Lands. 116. Sulstitititionr— Registration — Sheriff's sale — Right of institute — Effect of sale under execution. Leroux V. Mcintosh, lii., 1. See Substitution'. 4. Ships. 117. Ships and shipping — Material used in construction — Sale of goods — Contract — Principal and agent — Misrepresentations — Mistake— Conversion — Trover — Evidence — Misdirection — New triah—Ship's husband — Pledging credit of owners — Necessary out- fitting at home port.l — ^While a three-masted schooner was in course of construction, _E. obtained goods on credit from the plaintiffs (appellants) falsely representing that his co- defendants were interested in the ship. The materials were built into the ship and used in rigging and equipping her, she was launched and registered in the name of E. as sole owner, and, subsequently, these co- defendants became bond fide purchasers of certain shares in the ship. E. was regis- tered as her managing owner, and she was sent to sea. — Held, that sending the ship to sea was not such a conversion of the ma- terials worked into the ship as could sup- port an action in trover against the sub- sequent purchasers of shares in her. — -After the purchasers of the above mentioned shares were registered as co-owners, E. (ybtained, on a further credit, metal sheathing and other goods from the plaintiffs which were used in sheathing and further outfitting the vessel, at the port where she had been built, and where the owners resided, before send- ing her out to sea. — Held, that the managing owner had power to pledge the credit of the owners for such necessary purposes. The "Huntsman" ((1894) P. T>. 218), followed. The judgment appealed from (32 N. B. Rep. 147), which ordered a new trial on the ground of misdirection, was aflBrmed. Troop y. Everett, C'out. Oas. 131. And see Vendor and Pukchaseb. 5. Timbeb. 118. Sale of timber on Grown lands — Contract — Agreement in writing — sed before the entry to cut in 1903, and M. was entitled to damages. Beatty v. Mathewson, il., 557. 121. Sale of standing timber — Registrar tion of real rights — Ownership — Distinction of things — Movables and immovables — Priority of title.'} — ^A deed of sale of the right, during twenty years, to cut and re- move standing timher, with permission to make and construct such roads and buildings as might be necessary for that purpose, does not affect the title to the lands on which the trees are growing, but merely conveys the personal right to the timljer as and when cut under the license. The registration of such a deed, in conformity with the provisions of the Civil Code of Lower Canada respect- ing the registration of real rights, is un- necessary and; if effected, cannot operate to secure to the vendee any right, privilege or priority of title in or to the timber as against a sulisequent purchaser of the lands. Watson V. Perkins (18 L. C. Jur. 261), dis- tinguished. — ■ The judgment appealed from (Q. R. 16 K. B. 471), was affirmed. Laur- entide Paper Go. v. Baptist, xli., 103. 122. Tirnber license — Grown lands in Brit- ish Columbia — Real estate — Personalty — Contract — Exchange — 'Consideration — Pay- ment in joint stock shares — Vendor's lien — Evidence — Onus of proof — Pleading and practice, xliv., 458. See Lien. SALVAGE. 1. Breach of contract — Breach of trust — Assessment of damages — Sale of mining rights — Promotion of company — Failure to deliver securities — Principal and agent — Ac- count — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel, xxxviii., 198. See Teusts. 2. Admiralty law — Injury to salving ship — necessities of service — Seamanship — Ap- peal on nautical question, xli., 1. See Admiealty Law. SAAV-LOGS. 1. Floating saw-logs in rivers and streams —Damages— R. S. N. S. {1900), c. 95, s. 11, xxxiv., 265. See Rivers and Streams. 2. RiA^ers and streams — Floating savi-logs — Vse of booms — Vis major — Action — Quan- tum meruit — Salvage — Riparian rights, xxxvii., 657. See Rivers and Streams. 3. Mandamus — Driving timber — Order to fix tolls — Past user of stream — Appeal — River improvements — R. 8. O. (1897), c. lJt2, s. 13, xl., 523. See Mandamus. SCHOOLS. 1. Assessment and taxes — County School Fund — Contributions by incorporated towns — Construction of statute — 3 Edw. VII., c. 6, s. 7.] — The Supreme Court of Nova Scotia held (38 N. S. R. Rep. 1) that the Town of Dartmouth was liable to contribute pro- portionately towards the School Fund of the County of Halifax for the year 1904. Without calling upon counsel for the re- spondent, the Supreme Court of Canada dis- missed the appeal with costs. The Town of Dartmouth v. The County of Halifax, xxxTh., 514. 2. Legislative jurisdiction — Constitutional law — Companies — Private bills — Questions referred for opinions — Construction of stat- ute— B. N. A. Act, 1867, ss. 92, 93—38 Vict., 0. 11, s. 53 (D.), Cout. Cas. 1. See Legislation. And see Upper Canada Grammar School Fund. 3. Appeal — Special leave — Public interest — Important questions of law — Exemption from taxation — School rates. Whyte Pack- ing Co. V. Pringle, xlii., 691. See Appeal. 4. Leave to appeal — Municipal by-law — High School District — Public importance. In re Henderson and Township of West Mis- souri, xlvi., 627. 5. Municipal by-law — Exemption from taxation — Validating legislation — School rates — ^'Public School Act," 55 Vict., c. 60, s. 4 (Ont.) — Special by-law. Can. Nir- agara Power Co. v. Stamford, 1., 168. See also Regina Public School Board v. Gratton, 1. 589. See Assessment and Taxes. And see Education. SCRUTINY. Election law — Voting — Municipal by-law — Powers of judge — Inguiri' into qualifica- tion of voter — Disposition of rejected bal- lots — "Ontario Municipal Act," 1903, ss. 369 et seq. — "Voters' Lists Act," 1907, s. 24, xh'ii., 451. See Election Law. SEA BEACHES. 1. Title to land — Servitude — Possession — Action.} — ^The possession necessary to en- title a plaintiff to maintain a possessory ac- tion must be continuous and uninterrupted, 1063 SERVITUDE. 1064 peaceable, public and as proprietor for the whole period of a year and a day immedi- ately preceding the disturbance complained of. Co'U>ture v. Couture, xxxiv., 716. 2. Title to land — Accession — Servitude — Access to navigable waters — Possession an- nate — Possessory action, xxxiv., 716. See Title to Land. SEA-COASTS. , Seorcoast and inland fisheries — Canadian waters — Tidal waters — Navigable waters — Open sea — B. G. "Railway Belt" — Fore- shores — Terrm naturw — • Legislative juris- diction — Construction of statute, xlvii., 493. See Fisheries. SEA -COAST FISHERIES. Canadian waters — Three-mile-zone — Fish- ing by foreign vessels — Legislative jurisdic- tion — Seizure on high seas — Pursuit beyond territorial limit — International law — Con- stitutional taw — 'Construction of statute ■ — B. N. A. Act, 1867, s. 91, s.-s. 12— B. S. C. c. 94, ss. S, S, 4, xxx-rii, 385. See CoNSTiTUTioNAi Law. SECURITY. Banks and banking — Security for ad- vances — Assignment of goods — Claim on pro- ceeds of sale—SS Vict., c. 31, s. 14 (D.), xxxviii., 187. See Banks and Banking. SEIZURE. 1. Sheriff — Cause of action — Execution of writ of attachment — Abandonment of sei- zure — Estoppel, Cam. Gas. 78 ; xli., 331. See Attachment ; Execution. 2. Construction of statute — "Quebec Pub- lic Health Act," R. S. Q., 1909, art. 3913— Inspection of food — Duty of health officers — Quality of food — Condemnation — Seizure — Notice — Effect of action by health officers — Controlling power of courts — Evidence — Injunction — Appeal — Jurisdidion — Ques- tion in controversy, xlyii., 514. See Statute. SERVITUDE. 1. Title to land — Construction of deed — • Reservations — "Representatives" — Owners par indivis — Common lanes — Right of pas- sage — Private wall — Windows and open- ings on line of lane — Arts. 533-538 C. C] — A conveyance of lands fronting on public highways with the right of passage merely over a private lane does not create a servi- tude that can entitle the grantee to make windows and openings in walls which are built upon the line of the lane. — A reserva- tion in a deed of partition to the effect that lanes through subdivided lands should be held in common by the proprietors par in- divis or their representatives must he con- strued as reserving the rights in common only to the co-proprietors, their heirs or the persons to whom such rights in the lanes might be conveyed. Lesperance v. Oon4, xxxvi., 618. 2. Rights appurtenant to dominant tene- ment — Constru<;tion of ice-house — Change in natural conditions — Flooding of servient tenement — Aggravation of servitude — In- junction — Damages — Abatement of nui- sance—Arts. 406, 501, 549 C. C] — ^The con- struction upon a dominant tenement of an ice-house in a manner to cause the water from molting ice stored therein to flow down upon adjoining lands of lower level and in- juriously affect the same is an aggravation of the natural servitude in respect of which the owner of the servient tenement may re- cover damages for the injury sustained and have a decree for the abatement of the nuis- ance. — Judgment appealed from affirmed, Girouard, J., dissenting. Audette v. O'Cain, xxxix., 103. 3. Construction of deed — Title to land — Acquiescence — Estoppel by conduct — Actio negatoria servitutis — Operation of wa- terworks.] — By a deed executed in 1879, C. granted to R. the right of building a re- servoir in connection with a system of waterworks, laying pipes and taking water from a stream on his land, and in 1897, exe- cuted a deed of lease of the same land to him with the right, for the purposes of the waterworks established thereon, "de vaguer sur tout le terrain . . . et le droit d'y eonduire des tuyaux, y faire des citernes et autres travaux et rapport au dit aqueduc et aux reparations d'ieelui." — Held, that the deed executed in 1897 gave R. the right of bringing water from adjoining lands through pipes laid on the lands so leased. Cliche v. Roy, xxxix., 244. 4. Rivers and streams — Crown domain — Title to land — " Plottage " — Driving loose logs — Public servitude — Riparian owner- ship — Action possessoire — Arts 400, 503, 507, 2192 C. C. — Art. 1064 C. P. Q.]— There is a right of servitude over water- courses in respect of all advantages which the streams, and their banks, in their na- tural condition, can afford to the public, there being no distinction, in this regard, between navigable or floatable streams and those which are neither navigable nor float- able. McBean v. Carlisle (19 L. C. .Tur. 276), and Tanguay v. Price (37 Can. S. O. K. 657), followed. — Judgment appealed from (Q. R. 16 K. B. 48) aflirmed, Girouard and Idington, JJ., dissenting. Tanguay v. Can- adian Electric Light Co. xl., 1. And see Etveks and Steeams. 5. Title to land — Construction of deed — Easement appurtenant — Use of common lane — Overhanging fire-escape — Encroachment on space over lane — /Trespass — Right of ac- tion.] — ^A grant of the right to use a lane 1065 SET-OFF. 1066 in rear of city lots "in common with .others," as an easement appurtenant to the ' lots conveyed, entitles the purchaser to make any reasonable use, consistent with the com- mon user, not only of the surface but also of the space over the lane. The construction of a fire-escape, three feet wide with its lower end 17 feet above the ground (in com- pliance with municipal regulations), is not an unreasonable use nor inconsistent with the use of the lane in common by others ; consequently, its removal should not be de- creed at the suit of the owner oif the land across which the lane has been opened. — Judgment appealed from affirmed, ilaclen- nan, J., dissenting. Meighen v. Pacaud, xl., 188. 6. Construction of deed — Purchase of dominant and servient tenements — Unity of ownership — Extinction of servitude — Revi- val by sale of dominant tenement — Effect of sheriff's sale — Purgation of apparent servi- tude — Reference to former deed creating charge — Lost deed — Evidence.] — By the judgment appealed from (Q. R. 18 K. B. 24) , reversing the judgment of the Superior Court (Q. R. 32 S. C. 289), it was held that (1) Where the purchaser of two par- cels of land upon one of which there existed a servitude for the benefit of the other, that was extinguished by the unity of ownership ■thus restored, executes a deed of sale of the former, subject to the servitude as consti- tuted by the original title deed to which it made reference, such deed of saV in turn becomes a title whici revives the servitude; (2) The situation of a servitude giving a right of passage, wiich has not been defined in the title by which it was created, is suffi- ciently determined by the description given of its position, accompanied by a plan, in a deed of compromise between the owners of the two parcels of land submitting their differences in regard to the servitude to the decision of an arbitrator ; (3) Both before and since the promulgation of the Civil Code, apparent servitudes are not purged by adjudication on a sale by the sheriff under a writ of execution. — On appeal to the Su- preme Court of Canada the judgment ap- , pealed from was affirmed. Thompson v. fiimard, xli., 217. And see Basement. 7. Obligation of mitoyennete — Exercise of Party-rights — Contribution towards party- walU-Arts. 510 et seq. G. C.]— The defend- ants erected their building against the plain- tiffs' wall so that it served them in the way of exterior protection for the side of the new building : they connected the metal roof- flashing with the wall by nails, etc., but constructed the new works in such a man- ner as to avoid depending upon the plain- tiffs' wall for support and without piercing recesses in it to receive joists, etc. — Held, reversing the judgment appealed from (Q. R. 20 K. B. 524) , Fitzpatrick, C.J., dissent- ing, that the defendants had exercised party- rights in the plaintiffs' wall and utilized it as an external wall for their building, and that they were, consequently, obliged to treat it as a common wall and to pay half the value of the portion thereof so utilized by them. Morgan v. Avenue Realty Co., xlvi., 589. 8. Actio negatoria servitutis — Boundary ditch — ■ Estoppel — Waiver of objections ^- . Evidence. Breton v. Oonthier dit Bernard, Cout. Cas. 350. 9. Title to land — Accession — Sea beaches — Passage of navigable waters — Possession unnale — Possessory action, xxxiv., 716. See Title to Land. 10. Appeal — Jurisdiction — Annulment of proc4s-verbal — Injunction — Matter in con- troversy — Art. 560 C. C. — Highway, xxxvil., 321. See AppEAl. 11. Possessory action — Trouble de posses- sion — Right of action — Actio negatoria ser- vitutis — Trespass — Interference with water- course — Agreement as to user — Expiration of license by non-use — Tacit renewal — Catv- cellation of agreement — Recourse for dam- ages, xixix., 81. See Action. 12. Fishery and game leases — Lumbering operations — Driving logs — Dams — Personal servitude — Use and occupation, xlv., 1. See RrvEES and Stkeams. 13. Appeal — Jurisdiction — Matter in cort- troversy — Damming watercourse — Flooding of lands — Damages — Objection to jurisdic- tion — Practice — Costs, xlv., 292. See Appeal. 14. Watercourses ■ — Driving timber^ — "Damages resulting" — Reparation — Ripa- rian rights — Construction of statute — Arts. 7298, 7349 R. 8. Q., 1909 — Injury caused by independent contractor — Liability of owner of timber. Dumont V. Eraser, xlviii., 137. See EivEKS and Stkeams. And see Easement. SET-OFF. 1. Application to judgments — Equitable assignment — Practice — Stay of execution.'] G. and H. brought actions against each other for breaches of the same agreement. H. pleaded a set-off in the suit by G. against him, but he offered no evidence in support of such plea at the trial, and proceeded with an independent action against G. G. ob- tained judgment in his action against H._ and assigned it to L. while H. obtained judg- ment against G. in his action. Upon ,L. proceeding to enforce the assignment of the judgment in his favour, H. sought to stay the issue of execution and to set-off in the -action of G. against H. the judgment in his favour, in the action of H. against G. — Held (Strong, .1., dissenting), reversing the judgment of the court below (25 N. B. Rep. 451), that H. had not any equity against the bond fide assignee of G. to have his judgment set-off against the judgment ob- tained by G. which had passed to L. bona fide and for valuable consideration. Oreene V. Harris (xvi., 714), Cam. Cas. 99. 1067 SHAEEHOLDEE. 106&' 2. Company law -^ Payment for ehares — Transfer^ of business-^— Debt due partnership — Counterclaim — Acoori and satisfaction — Liability on subscription for shares — R. S. B. C. 0. U, ss. 50, 51, xxxiv., 160. Bee Company. 3. Pleading — Cross-demand — Compensa- tion — Arts. 3, 2dS, m, 207, G. P. Q.— Practice — Damages — Construction of con- tract — Liquidated damages — Penal clause — Arts. 1076, 1187, 1188 0. C. — Mstoppelr- Waiver, xxxvi., 347. See Pleading. 4. Title to land — Promise of sale — IJntry in land register — Venant by sufferance — Squatter's rights — Possession in good faith — Eviction — Possessory action — Compensa- tion for improvements — Rents, issues and profits, xxxix., 47. See Title to Land. 5. Sale of goods — Debtor and creditor — - Partnership — Evidence — Books of account — Practice — New trial — Reducing verdict on appeal. Cam. Cas. 282. See New Tbial. SHAREHOLDER. 1. Evidence ■ — • Burden of proof — Sale of bank stock — Allotment to shareholders — Shares refused or relinquished — Sale to pub- lic — Authority — R. S. G. [1906} c. 29, «. SJ/.l — M. was sued by a bank on a promis- sory note alleged to have been given in pay- ment for a portion of an issue of increased stock. He pleaded want of consideration and non-receipt of the stock. On the trial evidence was given of a resolution by the bank directors authorizing the allotment of the new issue to the then shareholders of whom M. was not one, and counsel for the bank admitted that there was no resolution allotting it an anybody else. A verdict in favour of the bank was set aside by the Court of Appeal : — Held, Idington and Duff, JJ., dissenting, that the onus was on M. to prove that the stock was issued to the pub- ' lie without authority and such onus was not satisfied. — Held, per Idington and Duff, JJ., that such onus was originally on M. but the evidence produced, and the said admission of counsel had shifted it to the bank, which did not furnish the requisite proof. Sovereign Bank of Canada v. Mclntyre, xliv., 157. 2. Joint stock company — Allotment of shares — Surrerider by allottee — Unpaid calls — Transfer — Waiver.] — S. subscribed for shares in a mining company, was notified of allotment of the same and paid the amount due on a first call as agreed. Later he noti- fied the company that he withdrew his sub- scription and refusing to pay further calls was sued therefor. It turnijd out that when S. subscribed for the stock all the shares had been allotted by the company and those given to him had been obtained by surrender from one of the original allottees: — Held, that under the Ontario Companies Act, when stock had been allotted by a company, the only case in which th© directors can regain control of it, is that of forfeiture for non- payment of calls. As in this case there was no forfeiture, the company did not legally own the stock allotted to S. and could not compel himi to pay for it. — Held, also, that the provision in said Act th^t stock on which calls are unpaid cannot be trans- ferred, is imperative and cannot be waived by the company. Smith v. Qowganda Minet, xliv., 621. 3. Joint stock eompany — Subscription for ehares — Principal arid agent — Authority of agent — Conditional agreement, xxxiv., 508. See Company. 4. Company -^ Paid-up ehares — ■ Sale by broker — Prospectus — Misrepresentations — Rescission — Delay — Liability of director*, xl., 339. See Company. 5. Sale of shares — Misrepresentation — Fraud^-Aetion for deceit — Accord and satis- faction, xl., 437. See Company. And see Bbokee; Company Law. 6. Action for deceit — Agreement for sale — False representations — Compromise — Notice. Pitt V. Dickson, xlii., 478. See Deceit. 7. Company law — Issue of shares — Auth- ority to sign certificate — Estoppel ■ — Evi- dence, xlv., 232. See Company. 8. Company — Purchase of director's pro- perty — 'Secret profit. Bennett v. Havelock Electric Light Co., xlvi., 640. 9. Company — Subscription for shares — Misrepresentation — Action for calls — Charge to jury — Misdirection — Objection — Pleading. Boechk v. Gowganda Mines, xlvi., 645. 10. Company — Subscription for treasury stock — Contract — Principal and agent — Mis- representation — Fraud — "Pransfer of shares — Rescission — Return of payments — Want of consideration. International Casualty Co. V. Thompson, xlviii., 167. See Company Law. 11. Company law — Agreement by direc- tors — Onerous contract — Non-iisclosure to shareholders — Breach of contract — Damages — Settlement of accounts — Appeal — Jurisdic- tion — Reference to master — Final judgment, Denman v. Clover Bar Coal Co., xlviii., 318. See Company Law. 12. Company — Disqualification of direc- tors — Taking personal profit — Fraud — Ille- gal contract — Ratification — Right of action ■ — Recourse by minority — Alberta "Gompwn- ies Ordinance," 2V.-TF, Ter. Ord., No. 20 of 1901 — Construction of statute. Theatr* Amusement Co. v. Stone, 1., 32. See Company. 1069 SHBBIPF. 1070 13. ilunieipal corporation — Powers of eouwU — Validity of contract — Right of ac- tion — Status of plaintiff ■ — Special injury. Uohertson v. Montreal, lii„ 30. See Municipal Coepoeation. 14. Contract — Sale — Payment in company stock — Unorganized company — Timd for de- livery.' Roche V. Johnson, lili., 18. See CONTBACT. SHERIFF. 1. Dehtor and creditor — Assignment of debt — Sheriff's sale — Equitable assignment — Statute of Limitations — Payment — Ratifica- tion — Principal and agent -1 — In Nova Sco- tia book debts cannot be sold under execu- tion and the act of the judgment debtor in allowing such sale does not constitute an equitable assignment of such debts to the purchaser.-^The purchaser received payment on account of a debt so sold which, in a subsequent action by the creditor and others, was relied on to prevent the operation of the Statute of Limitations. — Held, that though the creditor might be unable to deny the validity of the payment he could not adopt it so as to obtain a right of action thereon and the payment having been made to a third party who was not his agent did not interrupt the prescription. Eeighley. Maxtead & Co. v. Durant ([1901] A. C. 240), followed. Moore v. Roper, xxxv., 533. 2. Equitable mortgage — Mines and miner- als — Lease of mining lands — Sheriff's sale — Purchase by judgment creditor of mort- gagee — Registry laws — Priority — Actual no- tice — Lien for Crown dues paid as rent. — C. S. N. B. c. SO, s. 139.]— The courts be- low (37 N. B. Rep. 140-3 N. B. Eq. 28), held that mining leases ot lands in the pro- vince of New Brunswick and of the miner- als therein, issued by the Crown to the ap- pellant subsequent to- a mortgage executed by it in the State of New York in favour of the respondent, a company incorporated un- der the laws of that State, which do not re- serve the minerals to the State, were subject to the mortgage ; that a judgment creditor of the mortgagor (who purchased the leases at a sheriff's sale in execution of his own judgment and afterwards obtained new leases in his own name from the Crown) , took tiie new leases subject to the mortgage ; that the mortgage, though not registered un- der the "General Mining Act," C. S. N. B. (1903), c. 30, s. 139, was not void as against a judgment creditor who had actual notice of the mortgage and whose judgment was not registered under that section at the time of the commencement of the suit, and that the judgment creditor was not entitled to a prior lien for rent paid to the Crown on the licenses declared to be held in trust for the mortgagee. An appeal to the Supreme Court of Canada was dismissed, Maclennan, J., dis- senting. Mineral Products Co. v. Continen- tal Trust Co., xxxvil., 517. 3. Substitution — Registration — Sale — Right of institute — Effect of sale under exe- cution — Arts. 938-9^1, 950, 953, „„„„ ^„„^ C. C.—Art. 781, G. P. g.]— The judgment appealed from (19 R. L. N. S. 444), affirm- ing the judgment of lie Superior Court, which maintained the plaintiff's action to recover certain substituted lands on the ground that the rights of the substitute had not been purged by a sheriff's sale thereof, was affirmed with a variation in regard to the expertise ordered respecting the amounts to be allowed to the purchaser at the sheriSE's sale for improvements made there- on and as to accounts for rents, issues and profits. Brodeur, J., dissented. — Per Duff and Auglin, JJ.— The provisions of the Civil Code in regard to the registration of unopened substitutions do not contemplate registration affecting immovables, as such, but refer merely to registration necessary to the operation of the instrument creating the substitution ; consequently articles 2090 and 2091 of the Civil Code have no applica- tion.— Per Duff, J., Brodeur, J„ contra. — Article 781 of the Code of Civil Procedure deals primarily with procedure and should be construed in connection with article 953 of the Civil Code so as to effectuate rights resting upon the provisions of the Civil Code relating to substantive law. Vadeboncceur V. City of Montreal (29 Can. S. C. R. 9), distinguished. — Per Duff and Anglin, JJ.-^ The registration of an instrument creating a substitution is effective from the date upon which it is registered and protects the rights of the substitute against the right acquired by a purchaser under a subsequent sale in execution made by the sheriff. Trudel v. Parent (Q. R. 2 Q. B. 578), referred to. — Per Anglin, J. — In the case of a sale undci execution against an institute, subseauent to the registration of the substitution, the pur- chaser at sheriff's sale acquires merely the personal interest of the institute subject to the substitution ; such a title cannot defeat the claim of the substitute. — Per Brodeur, J., dissenting. — Inasmuch as the claim of the execution creditor was for a debt due and exigible prior to the date when the in- strument creating the substitution was regis- tered, the effect of the sale by the sheriff was to discharge the immovable sold from the claim of the substitute and to give the purchaser at that sale an absolute title to the land having priority over that of the substitute. Leroux v. Mcintosh, lii., 1. 4. Extinction of servitude — Effect of sher- iff's sale — -Purgation of apparent servitude — Evidence.] — Both before and since the promulgation of the Civil Code, apparent servitudes are not purged by adjudication on a sale by the sheriff under a writ of exe- cution. Thompson v. Simard, xli., 217. And see Seevittjde. 5. Sheriff's sale — Ownership — Lease — Title to land — Trust — Beneficiary — Fraudu- lent contrivances — Estoppel, xxxiv., 1. See Lease. 6. Sheriff's sale of lands — Opposition afin de charge — Discretionary order — Default in furnishing security — Res judicata-^ — Estop- pel by record — Frivolous and vexatious pro- ceedings — Quashing appeal — Jurisdiction of 1071 SHIPS AND SHIPPING. 1073 Supreme Court of Canada — R. 8. C. c. 135, ss. 27, 59— Arts. 651, 726 C. P. Q., xxxvi., 613. See Opposition. 7. Appointment of court official to act as receiver — Management of business — Super- vision and control — Laches, xxxvi., 647. See Receiver. 8. Execution — Sale of land — Statute of Limitations — Possession of land — Construc- tive possession — Colourable title — Effect of sheriff's sale, xxxvii., 157. , See Title to Land. 9. Cause of action — Execution of writ of attachment — Abandonment ' of seizure — Es- toppel, Cam. Oas. 78. See Attachment. 10. Title to land — Lease for years — Pos- session by sub-tenant — Purchase at sheriff's sale — Adverse occupation — Evidence — Con- veyance of rights acquired — Compromise — Waiver — Estoppel, Gout. Cas. 158. See Title to Land. 11. Substitution — Registration — Sheriff's 'sale — Right of institute — Effect of sale un- der execution. Leroux v. Mcintosh, lii., 1. See Substitution. SHIPS AND SHIPPING. 1. Time limit for loading — Loading at port — Custom ^- Obligation of charterer.'] ■ — A ship, by the terms of the charter, was to load grain at Fort William before noon of December 5th. — Held, per Taseher^au, C.J., and Davies, J. (Girouard and Nesbitt, JJ.), dissenting) , that to load at Fort "William meant to load at the elevator there; that the obligation of the ship-owner was to have the vessel placed under the elevator in time to be loaded before the expiration of the time limit; and where, finding several vessels ahead of him, the captain saw that he could not be loaded by thei time fixed and left to save insurance, the obligation was not ful- filled and the owner could not recover dam- ages. — Per Killam, J. The contract would have been fulfilled if the vessel had arrived at Fort William in time to load under the conditions which might be supposed to exist on arrival. — ■ Judgment appealed from (6 Out. L. K. 432), affirmed. (Leave to appeal refused by Privy Council, July, 1904) . Mid- land 'Navigation Go. v. Dominion Elevator Co., xxxiv., 578. 2. Negligence — Careless mooring of vessels — Vis major.'] — The plaintiff's tug, "Vigi- lant," was moored at a wharf in Vancou- ver Harbour with another tug, the"Lols," belonging to the defendant, lying outside and moored there by a line attached to the "Vigilant." The "Lois" was left in that position all night with no one in charge and no fenders out on the side next the "Vigi- lant." During the night a heavy gale came up and the "Lois" pounded the "Vigilant" causing her considerable damage. — Held, afiirming the judgment appealed from, that, as the defendant was not a trespasser, he was not guilty of negligence, under the cir- • cumstances, in leaving his tug as he did and that he was not obliged to observe extreme and unusual precautions to avoid injury by a storm of exceptional violence. Bailey v. Cates, XXXV., 293. 3. Pilotage — Port of St. John, N.B. — Ships propelled wholly or in part 'by steam — Coal barges towed — R. S. C. c. 80, ss. 53, 59.] — Oaal barges towed by steamers or tugs between the ports of Parrsboro', N.S. and St. John, N.B., are exempt from compulsory pilotage at the latter port, even though un- der favourable conditions they could be navi- gated as sailing ships. — Judgment appealed from (37 N. B. Bep. 406), affirmed. Saint John Pilot Commissioners v. Cumberland Ry. and Goal Co., xxxviii., 169. •4.' Gollision^-^Viol&tion of rules not affect- ing accident — Steering wrong course.] — The Supreme Court will not set aside the finding of a nautical assessor on questions of navi- gation adopted by the local judge unless the appellant can point out his mistake and shew conclusively that the judgment is en- tirely erroneous. The Picton (4 Can. S. C. R. 648), followed. — A steamer coming up Halifax harbour ran into a schooner strik- ing her stern on the port side. No sound signals were given. The green light of the schooner was seen on the steamer's port bow -and the latter starboarded her helm to pass astern and then ported. She then was so close that the engines were stojiped too late to prevent the collision. — Held, that the steamer alone was to blame for the collision. . — Held, also, that though under the rules the schooner should have kept her course and also was to blame for not having a pro- per lookout, neither fault contributed to the collision. (Appeal to Privy Council stood dismissed, 27th May, 1907, for want of pro- secution under Privy Council, Rule V. of 13th June, 1853). S. S. "Arranmore" v. Rudolph, xxxviii., 176. 5. Admiralty laio — Foreign bottoms — Col- lision in foreign waters — Jurisdiction of Canadian courts.] — A foreign vessed pas- sing through waters dividing Canada from the United States under a treaty allowing free passage to ships of both nations is not, even when on the Canadian side, within Canadian control, so as to be subject to arrest on a warrant from the Admiralty Court. — A warrant to arrest a foreign ship cannot be issued until she is within the jurisdiction of the court. — Quaere. Have the Canadian Courts of Admiralty the same ■jurisdiction as those in England to try an action in rem by one foreign ship against another for damages caused by a collision in foreign waters? — Judgment of the Exche- quer Court, Toronto Admiralty District (10 Ex. C. R. 1), reversed. Idiugton, J., dis- senting. The Ship "D. C. 'Whitney" v. St. Clair Navigation Co., xxxyiii., 303. 6. Maritime law — Collision — Negligence ■^Tug and tow — Negligence of tow.] ^A tug with the ship "Wandrian" in tow left a wharf at Parrsboro', NvS., to proceed down 1073 SHIPS AND SHIPPING. 1074 the river and get to sea. The schooner "Helen M." was at anchor in the channel and the tug directed its course so as to pass her on the port side when another vessel was seen coming out from a slip on that side. The tug then, when near the "Helen M." changed her course, without giving, any signal, and tried to cross her bow to pass down on the starboard side and in doing so the "Wandrian" struck her, inflicting seri- ous injury. In an action against the "Wan- drian" by the owners of the "Helen M." the captain of the former insisted that the schooner was in the middle of the channel, which was about 400 feet wide, but the local judge found as a fact that she was on the eastern side. — Held, aSirming the judgment of the local judge (11 E.x. C. R. 1), that the navigation of the tug was faulty and shewed negligence, that if the "Helen M." was on the eastern side of the channel as found by the judge there was plenty of room to pass on her port side, and if, as con- tended, she was in the middle of the channel she could easily have been passed to star- board ; and that in attempting to cross over and pass to starboard when she was so tiear the "Helen M." as to render a collision al- ' most inevitable was negligence on the tug's ■ part ; and that the "Helen M." exercised proper vigilance and was not negligent in failing to slacken her anchor chain as the "Wandrian" was too close and had not sig- nalled. — Held, also, that the tow was liable for such negligence in the navigation of the tug. The "Wandrian" v. Hatfield, xxxviii., 431. 7. Shipping — Material men — Supplies fur- nished for "last voyage"- — Privilege of der- nier Squipeur — Round voyage — Charter- party — -Personal deits of hirers — Seizure of ship— Arts. SS83, Z391 G. C.—Art. 931 C. P. Q. — Construction of statute — Ordon- nances de la Marine, 1681-'] — ^A steamship lying at the port of Liverpool was chartered by the owners to P. for six months, for voyages between certain European ports and Canada, the hirers to bear all expenses of navigation and- upkeep until she was re- turned to the owners. The ship was de- livered to the hirers at Rotterdam where she took on cargo and sailed for Montreal. On arriving at Montreal she unloaded and re-loaded for a voyage to Rotterdam, with the intention of returning to Montreal, and obtained a supply of coal from the plain- tiffs which was furnished on the order of the hirers' agent at Montreal. The ship sailed to Rotterdam and returned to Montreal in 'about one month, touching at Havre and Quebec, discharged her cargo and proceeded to re-load, obtaining another supply of coal from the plaintiffs in the same manner as the first supply had been furnished. Within a few days, the price of these supplies of coal being still owing and unpaid, the hirers be- came insolvent, and the plaintiffs arrested the ship at Montreal, claiming special pri- vilege upon her as derniers 4guipeurs in fur- nishing the first supply of coal on her last round voyage, the right of attachment be- fore judgment in respect of both supplies, and seizing her under the provisions of arti- cles 2391 of the Civil Code and 931 of the Code of Civil Procedure. — Held, per Fitz- patrick, C.J., and Davies, Macleunan and Duff, JJ., that voyage from Montreal to Rotterdam and return was not the ship's "last voyage" within the meaning of article 2383 (5) of the CivU Code; that the voy- age out from Montreal and that returning from Rotterdam did not constitute one round loyage but were separate and complete voy- ages, and that, consequently, there was no privilege upon the ship for the suppiy of coal furnished for her voyage from Mon- treal to Rotterdam. And also, that the pro- visions of article 2391 of the Civil Code did not render the ship liable to seizure for per- sonal debts of the hirers, and, consequently, that she could not be attached therefor by saisie-arret. — Judgment appealed from (Q. R. 16 K. B. 16), affirmed, Girouard, J., , dissenting. — Per Davies, J. — ^The " last voy- age" mentioned in art. 2383 C. C. refers only to a voyage ending in the Province of Que- bec. — Per Idington, J. — As the terms of the charter-party expressly excluded auth- ority in the hirers to bind the ship for any expenses of supply and as nothing arose later that could by any implication of law confer any such authority on anyone, and especially so in a port where the owners had their own agents, any possible rights that might in a proper case arise under article 2383 of the Civil Code did not so arise here ; and, therefore, though agreeing in the result he expressed no opinion on the meaning of -the term "last voyage" therein. Lloyd v. Ouibert (L. R. 1 Q. B. 115), should govern this case. Inverness By. and Coal Co. v. Jones et al., xL, 45. 8. Admiralty — Preliminary act — Amende ment — Collision — Evidence.] — In an ac- tion in admiralty claiming damages for in- jury to plaintiffs' ship, the "Neepawah," through collision with the "Westmount" be- longing to defendants the preliminary act and statement of claim alleged that the port quarter of the latter struck the stern of the "Neepawah." The local judge, in his judg- ment, held that the evidence shewed a colli- sion between the two ships stern to stern and, against objection by defendants' coun- sel, of liis own motion allowed the statement of claim to be amended to conform to such evidence, stating that its admission had not been objected to and that defendants were not misled. — Held, that such amen-dment should not have been made ; that 'it set up a new case and one entirely different from that presented by the preliminary act and state- ment of claim and greatly prejudiced the de- fence; and that the local judge Avas wrong in stating that the evidence was admitted without objection as it was protested against at the trial. — Held, also, that errors in the preliminary act may be corrected by the pleadings but, if not, the parties will be held most strongly to what is contained in their act— Held, per Davies, Maclennan and Duff, JJ., that the plaintiffs had not satisfac- torily established that the collision, even that charged under the amendment, had actually occurred. — Per Pitzpatrick, C.J., that the evidence proved that no collision between the vessels took place. — Idington, J- concurred in the judgment allowing the appeal. Mon- treal Transportation Co. v. New Ontario S S. Co., xl., 160. 1075 SHIPS AND SHIPPISTG. 1076 9. Admiralty law ^— JurisJiction nf the Exchequer Court of Canada — Claim under mortgage on ship^Action in re/nr ■ Plendinff — Abatement of contraet price — Defects in construction — Damages.^ — In an action in rem by the builders of a ship to laifoice a mcrtgage thereon, given to th';m on account of the contract price for its construction, the owners, for whom ttie ship was built, may plead as a defence pro tanto that the ship was not constructed aceoriiug to speci- fications and claim an abateaieat of the price in consequence of such •lefault and *hat the loss in value of the jship, at tb; timfi of delivery, attributable to such default, should be deducted from the claim uB'ter tlip mort- gage. (Leave to appeal to Privy Council Has granted by the Supr'^me Court of Can. ; see kL, 430.) Bow MeLachlan and Go. v. The "Gamosun" xl., 418. 10. Material used in construction — Sale of goods ■ — Contract — Principal a».d agent — Misrepresentations — Mistake -^ Conver- sion — Trover — Evidence — Misdirection ■ — Jfew trial — Ship's husband — Pledging <>re- dit of owners — Jfecessary outfitting at home port,^ — While a three-master schooner was in course of construction, E. obtained goods on credit from the plaintiffs (appfiilnnts) falsely representing that his co-defendants were interested in the ship. The materials were built into the ship and used in rigging and equipping her, she was launched and re- gistered in the name of E. as sole owner, and, subsequently, these co-defendants be- came 6onS fide purchasers of certain shares in the ship. E. was registered as her man- aging owner, and she was sent to sea. — Held, that sending the ship to sea was not such a conversion of the materials worked into the ship as could support an action in trover against the subsequent purchasers of shares in her. — After the purchasers of the above mentioned shares were registered as co-owners, E. obtained, on a further credit, metal sheathing and other goods from the plaintiffs which were used in sheathing and further outfitting the vessel, at the port where she had been built, "and where the owners resided, before sending her out to sea. — Held, that the managing owner had power to pledge the credit of the owners for such necessary purposes. The "Huntsman" ((1894), P. D. 214), followed.— The judg- ment appealed from (32 N. B. Rep. 147), which ordered a new trial on the ground of misdirection, was affirmed. Troop v. Ever- ett, Gout. Gas., 131. 11. Winding-up proceedings — Company in liquidation — Sale, of assets — Consent to sale of mortgaged ship — Sale by order of court — Mariners' liens — Sale free from incum- brances — Special fund — Privileged charge — Priority — Valuation of security — Release of mortgage — Marshalling securities — Subroga- tion.] — A ship which belonged to a company in liquidation was mortgaged to a bank and was also subject to maritime liens for sea- men's wages due at the time of the wind- ing-up order. The bank consented to the sale of the ship, by the liquidator, free from incumbrances, at the same time as he sold the other assets of the company by direction of the court. He sold the ship separately and free from incumbrances for $5,000, which was credited, as- a special fund, in his accounts. The bank subsequently filed its claim, valuing its security on the ship at $5y000. The purchasers took the ship to sea and it became a total loss. The bank then made claim to the whole of the fund realized on the sale of the ship and their claim was opposed on behalf of the wage lien-holders claiming the right to be paid by priority out of this fund. — Held, affirming the judgment appealed from (4 West. W. R. 1271; 25 West. L,. R. 92; 12 D. L. R. 807), that by its consent to the sale of the ^hip under direction of the court, free from incum- brances, the bank had assented to the ooD- version thereof released from its morf^age and that the proceeds of the sale of the ship should be apportioned amongst the creditors in the order and according to the priorities provided by law: consequently it was not entitled to any special charge on the fund realized upon its sale. — Held, further, that the rights of the wage-earners holding mari- time liens were not affected by the loss of the s^ip after it had been sold by the liqui- dator wider the order of the Eourt and that they were entitled to recover their claims out of the fund realized upon the sale of the siiip in priority to the mortgagee. Traders Bank v. Lockwood, xlviii., 593. [Memo. — The court ordered that the rights of the bank, if any, to relief, by way of subroga,tion or marshalling of securities, should be reserved to be dealt with on fur- ther proceedings in the winding-up of the company.] 12, GlMrtered ship — SmtabiUty for cargo ■ — Duty of owner — Dead freight — Demur- rage.^ — L. chartered tbe ship "Helen" to carry a full and complete cargo of re-sawn yellow pine lumber from a port in Florida to St. John, N.B. At the port of loading the lumber of dimensions customary in the trade at that port, was furnished in quan- tity sufficient to fill a ship of the "Helen's" tonnage, but it could not all be stowed in that ship, which was built for the fruit trade, and could not take a full cargo of lumber of that size. The quantity loaded was delivered at St.- John, and the ship- owner brought action for the freight on the deficiency. — Held, reversing the judgment ap- pealed against (44 N. B. Rep. 12), that it was the duty of the owners to provide a ship capable of carrying tlie cargo called for by the charter party ; that the evidence estab- lished that the "Helen" was not so capable ; that the charterer, having furnished lumber of the dimensions customary at the port for loading ships of the size of the "Helen," had discharged his duty under the contract, and was not liable to the owner for the dead fi eight. — Under the demurrage clause of the charter party, the owners claimed damages for delay in loading and discharging the cargo. — Held, that the manner in which the ship was constructed prevented the work of loading and discharging the lumber from proceeding as fast as it otherwise would have done ; tjhe delay was, therefore, imput- able to tho owners themselves and the char- terer was not liable. Likely v. Duckett, liii, 471. 1077 SMUGGLING. 1078 13. Charier party-^— Conditions to load and proceed with diepatoh — Delay — Loss of car- go — Recovery of freight — Action. Spindler V. Farquhar, Cout. Oas. 364. 14. Jury trial — Praetiee — Findings as to negllgenee— Questions as to special grounds —Judge's charge — Non-direction — • Mis- direction — Application of law to facts — New trial, xxxv., 362. See New Tkial. SHIPPING BILLS. Sale of goods — ' Suspensive condition — Ikrm of credit— Delivery— Pledge— Bills of lading — Indorsement of bills — Notice — Fraudulent transfer — insolvency — Bank- ing — Bailee receipt — Brokers and factors — Principal and agent — Resiliation of con- tract — Revendication — Damages — Prac- tice — Pleading, xxxvi., 406. See Sale. 15. Maritime law — Collision — Inland waters — Rules of navigation — Narrow chan- nel — Boston Harbour, xxxv., 616. See Admibaltt Law. 16. Maritime law — Collision — Grossing ships — Admiralty Rules 1897, rule 19, xxxvii., 284. See Admikamt Law. 17. Canadian waters — -Three-mile zone — Fishing by foreign vessel — Legislative juris- diction — Seizure on high seas — Pursuit beyond territorial limit — International law — Constitutional lg,w — Sea-coast fisheries ■ — Construction of statute — B. N. A. Act, 1861, c. 91, s.-s. IZ—R. S. C. c. 94, ss. 2, S, 4, xxxvii., 385. See Constitutional Law. 18. Negligence — Navigation of inland waters — Collision — Qovernment ships and vessels — "Public work" — ''The Exche- quer Court Act," s. 16 — Construction of statute — Right of action, xxxviii., 126. See Negligence; Admikalty Law; Insurance, Marine. 19. Perils of the sea — Unseaworthy ship — Evidence — Warranty — Inspection of ship- ping — Certificate of seaworthiness — Con- struction of statute — R. 8. C. 1906, c. 133, s. 3^2 — Droioning of sailors — Negligence of master — Liability of owner. Connolly v. Orenier, xlii., 242. 20. Winding-up proceedings — Company in liquidation — Sale of assets — Consent to sale of mortgaged ship — Sale by order of court — Mariners' liens — Sale free from incum- brances — Special fund — Privileged charge — Priority — Valuation of security — Release of mortgage — Marshalling securities — Subroga- tion. Traders Bank v. Lockwood, xlviii., 593. See Lien. 21. Maritime law — Tug and tow — Con- tract of navigation — Collision of tug — Lia- bility of tow — Foreign ship — Proceedings in foreign court — Jurisdiction in Canada. A. L. Smith V. Ontario Oravel, li., 39. See Admibaltt Law. ,22. Admiralty law — Navigation of canal — "Narrow channel" — Marine Department Re- gulations, rule 25 — Starboard course — Fair- ways and mid-channels — "Canada Shipping Act," R. 8. C. 1906, c. 113, s. 916— Collision —Liability for damages — Canal Regiflations, rule 22- — Right-of-way, liv., 51. See Collision. SIGNATURE. Contract — Fictitious signature — As- sumed name, xxxix., 378. See Contract ; Fobgert. SIGNIFICATION. Railway aid — Municipal by-law — Condi- tion precedent — Pqirt performance— Annul- ment of by-law — Right of action — Assign- ment of obligatiorir— Notice — Art. 1571 C. C, xxxvi., 686. See Action. SLANDER OF TITLE. Defamation — Printing report of ghost haunting premises — Fair comment — Dis- paraging property — Special damages — Evi- dence — Presumption of malice — Right of ac- tion.] — The reckless publication of a report as to premises being haunted by a ghost raises a presumption of malice suflScient to support an action for damages from de- predation in the value of the property, loss of rent and expenses incurred in conse- quence of such publication. Barrett v. The Associated Newspapers (23 Times L. R. 666), distinguished. The judgment appealed from (16 Man. R. 619), was affirmed, the Chief Justice dissenting. Manitoba Free Press Co. v. Nagy, xxxix., 340. SMUGGLING. 1. Customs Act — Importation of cattle — Smuggling — Clandestinely introducing cattle into Canada — Claim for return of deposit made to secure release of cattle seized — Evi- dence.] — The suppliants claimed the return of money deposited by them to obtain the re- lease of cattle seized for the infraction of the "Ctistoms Act" and hel-d by the Crown as forfeiture. Upon conclusions as to facts drawn from the evidence the petition of right was refused by the Exchequer Court (10 Ex. C. R. 79). On appeal the judg- ment of the Exchequer Court was afSrmed. Spencer Brothers v. The King, xxxix., 12. 2. Promissory note — Illegal consideration — Smuggling transaction — Burden of proof — Findings of trial judge.]— The trial judge dismissed the action on the ground that the original note, of which those sued upon were renewals, was given without consideration 1079 SPECUIC PEEFOEMAFCE. 1080 or in connection with smuggling transac- tions. He considered the evidence unsatis- factory as the plaintiff did not produce the books of account shewing how the considera- tion was made up and that there was evi- dence to support the plea of illegality. On an equal division of opinion among the judges, on an appeal (39 N. S. Rep. 65), his judgment stood aflBrmed, and a further ap- peal to the Supreme Court of Canada was dismissed. Ross v. Gannon, xxxix., 675. SOLICITOR. 1. Solicitor and client — Confession of judgment — Agreement with counsel — Over charge.] — ^A solicitor may take security from a client for costs incurred though the rela- tionship between them has not been term- inated and the costs not taxed, but the amount charged against the client must be made up of- nothing but a reasonable remun- eration for services and necessary disburse- ments. — ^A country solicitor had an agree- ment with a barrister at Halifax for a division of counsel fees earned by the lat- ter, on business given him by the solicitor. The solicitor took a confession of judgment from a client for a sum which included the whole amount charged hy the Halifax coun- sel, only part of which was paid to him. — Held, that though the arrangement was im- proper it did not vitiate /the judgment entered on the confession, but the amount not paid" to counsel should be deducted therefrom. Knock v. Owen, xxxv., 108. 2. Judicial sales — Interested Udders — Disqualification as purchaser — Art. H84 C. G. — PuMic policy.] — ^Solicitors and counsel retained in proceedings for the sale of pro- perty are not within the classes of persons disqualified as purchasers by article 1484 of the Civil Code of Lower Canada. Judg- ment appealed from (10 Ex. C. R. 139), affirmed. Rutland Railroad Co. v. Biique; White V. B4ique; Morgan v. Biique, xxxvii., 303. And see Railways. 3. Fiduciary relationship ■ — Transfer of lands — Joint negotiations — Agreement to share profits — Intervention of third party — Solicitor's separate advantage — Bonus from third party — Obligation to account to client.'] — The Government of British Col- umbia had unsuccessfully attempted, through the agency of A., to obtain a transfer of the rights of a band of Indians in the Kit- silano Reserve. About a year afterwards C. became interested in the matter and ar- ranged with R., a solicitor, that they should undertake to obtain the required transfer on the understanding that any profits made out of the transaction should be equally divided between them. Long negotiations with the band took place without any definite result, when, without the consent of C, through the intervention of A. at the request of iR., the transfer was obtained and R. received a sum of money from A. as a share of the profits realized on carrying the transaction through. In an action by C. to recover one- half of the amount so received by R. — BeJd, affirming the judgment appealed from (20 B. C. Rep. 365), that throughout the whole transactions the fiduciary relation- - ship of solicitor and client had contin- ued between R. and C. and, consequently, that R. was ohliged to account to O. for what he had received from A. as remunera- tion for seryiices in connection with the business which they had jointly undertaken in order to o'btain the transfer of the title from the Indians. Read V. Cole, lii., 176. 4. Taxing costs to Crown — Fees to coun- sel and solicitor — Salaried officers represent- ing the Crown, xxxix,. 621. See Costs. 5. Lawful costs — Taxation of fees to counsel and solicitor — 'Construction of stat- ute— 1 & 2 Edw. VII., c. 77 (Man.)— Con- tract with solicitor engaged on salary — Con- flict of laws, xli., 366. See Costs. 6. Retainer — Subsequent proceedings — Habeas corpus-^Evidence. Duff v. Lane, xlviii., 508. 7. Special statute — Fixed sum for costs — Delivery of hill — "Solicitors' Act," 2 Geo. V., c. 28, s. Si. Gundy v. Johnstone, xlviii., 516. SOUTH SHORE RAILVTAY. See Railways. SPEAKER. Constitutional law — Legislative AssemMy ■ — Powers of Speaker — Precincts of House of Assembly — Expulsion, xxxiv., 400. See Constitutional Law. SPECIFICATIONS. Public work — Contract — Change in plans and specifications — Waiver by Order-in- Council — Powers of executive — Construction of statute — Directory and imperative clauses — Words and phrases — " Stiputations" — Ex- chequer Court Act, s. S3 — Extra works- Engineer's certificate — Instructions in writ- ing — Schedule of prices — Compensation at increased rate — Damages — Right of action — Quantum meruit, xxxviii., 501. See Contract. SPECIFIC PERFORMANCE. 1. Petitory action ■ — Specific performance of contract— Joinder of cause of action.] — There can be no objection to the demande au pMitoire being joined in the action, for specific performance. Meloche v. Deguire, xxxiv., 24. And see Title to Land. 2. Agreement for the sale of land — Falsa demonstratio-^— Position of vendor's signature — Specific performance.] — On the conclusion 1081 SPECIFIC PEEFOEMANCE. 1082 of negotiations between C. and B. as to the sale of two city lots on the corner of Hast- ings Street and Westminster Avenue, in Vancouver, B.C., C. signed a document as follows :— "Vancouver, June 2Sth, 1902. — Received from James Borland the sum of ten dollars, 'being a deposit on the purchase of lots No. 9 & 10, Block No. 10, District Lot 196, purchase price twenty thousand dollars ($20,000.00), the balance to be paid within (10 July) days, when I agree to give the said James Borland a deed in fee simple free from all incumbrances. (Sgd.) Jos. Coote, N.W. Cor. Hastings & Westr. Av«." The lots on the corner of the streets men- tioned were, in fact, lots 9 and 10 in block 9, and were the only lots defendant owned. In an action for specific performance of the agreement for sale of the lands the trial judge found that these were the lots intended to be sold, and also that the words below the signature formed part of the receipt. — Eeld, affirming the judgment appealed from (10 B. C. Rep. 493), Killam, J., dissenting, that the inaccuracy of the description in the receipt was a mere discrepancy which should be disregarded and the decree made for specific performance in respect of the lots actually bargained for between the par- ties. (Leave to appeal t6 Privy Council re- fused, 5th July, 1905). Coote v. Borland, XXXV., 282. 3. Contract — Sale of goods — Refusal to perform — Specific performance — Damages.} — By contract in writing M. agreed to sell to P. cedar poles of specified dimensions, the contract containing the following provisions : "AH poles as they are landed in Amprior are to be shipped from time to time as soon as they are in shipping condition. Any poles remaining in Arnprior over one month after they are in shipping condi- tion to be paid for on estimate in thirty days therefrom less 2 per cent, discount. . . . For shipments cash 30 days from dates of invoices less 2 per cent, discount." — Held, that for poles not shipped P. was not obliged to pay on the expiration of one month after they were in shipping condi- tion, but only after 30 days from receipt of the estimate of such poles. — M. refused to deliver logs that had been on the ground one month without previous payment and P. brought an action for specific perform- ance and damages claiming that he could not be called upon to pay until the poles were inspected and passed by him, and also that M. should supply the cars. M. counter- claimed for the price of the poles. — Beld, Sedgewick and KiDam, JJ., dissenting, that each party had misconceived his rights under the contract, and no judgment could be rendered for either. Phelps v. McLacMin, XXXV., 482. 4. Partnership — Syndicate for promotion of joint stock company — Trust agreement — Construction of contract — Administration by majority of partners — Lapse of time limit — Specific performance.] — ^A syndicate consist- ing of seven memibers agreed to form a stock company for the development, etc., of pro- perties owned by two of their number, the defendants, under patent rights belonging_ to two other members ; the three remaining members, of whom plaintiff was one, furn- ishing capital, and all members agreeing to assist in the promotion of the proposed com- pany. In the meantime the lands were ac- quired by the defendants and the patent rights were assigned to them, in trust for the syndicate, and the lands and patent rights were to be transferred to the syndi- cate or to the company without any con- sideration save the allotment of shares pro- portionately to the interest of the parties. The stock in the proposed company was to be allotted, having in view the proprietary rights and moneys contributed by the syndi- cate members, in proportion as follows, 37% per cent, to the defendants who held the property, 32% per cent, to the owners of the patent rights, the other three members to receive each 10 per cent, of the total stock. A time limit was fixed within which the company was to be formed, and in default of its incorporation withto that time, the lands were to remain the property of the defendants, the transfers of the patent rights were to become void and all parties were to be in the same position as if the agree- ment had never been made. The tenth clause of the agreement provided that, in ease of difference of opinion, three-fourths in value should control. Owing to differ- ences in opinion, the proposed company was not formed but, within the time limited, the plaintiff, and the other- two members, hold- ing together 30 per cent, interest in the syndicate, caused a company to be incor- porated for the development and exploitation of the enterprise, and demanded that the property and rights should be transferred to it under the agreement. This being refused, the plaintifl: brought action against the trus- tees for specific performance of the agree- ment to convey the lands and transfer the patent rights to the company, so incorpor- ated or for damages. — Held, that the tenth clause of the agreement controlled the ad- ministration of the affairs of the syndicate and that, as three-fourths in value of the members had not joined in the formation of a company, as proposed, within the time limited, the lands remained the property of the defendants, the patent rights had re- verted to their original owners and the plaintiff could not enforce specific perform- ance. Hopper v. Hootor, xxxv., 645. 5. Principal and agent — Sale of land — Authority to make contract.] — ^The defend- ant gave a real estate agent the exclusive right, within a stipulated time, to sell, on commission, a lot of land for $4,270 (the price being calculated at the rate of $40 per acre on its supposed area), an instal- ment of $1,000 to be paid in cash and the balance, secured by mortgage, payable in four annual instalments. The agent entered into a contract for sale of the lot to the plaintiff at $40 per acre, $50 being de- posited on account of the price, the balance of the cash to be paid "on acceptance of title," the remainder of the purchase money payable in four consecutive yearly instal- ments and with the privilege of "paying off the mortgage at any time." This contract was in the form of a receipt for the deposit and signed by the broker as agent for the defendant. — Held, affirming the judgment appealed from (15 Man. Hep. 205) that the agent had not the clear and express auth- ority necessary to confer the power of enter- ing into a contract for sale binding upon 1083 SPECIFIC PEEFOBMANCE. 1084 bi^ principal; — Held, further, that the term allowing the privilege of paying off the mortgage at any time was not authorized and could not be enforced against the de- fendant. Oilmour v. Simon, xxxvii., 422. 6. Agreement for sole of land — Prineipal and agent — Estoppel — "Land Oommissioner'' — Sfecific performance.'i — The plaintiffs, as assignees, claimed specific performance of an alleged agreement for the sale of lands based upon the following letter: — "Fernie, B.C., June 5th, 1900.— D. V. Mott, Esq., Fernie, B.C. : — Re sale to you of mill site. — Dear Sir : — The Crow's Nest Pass Coal Company hereby agree to sell to you a piece of land at or near Hosmer Station, on the Crow's Nest Pass line, to contain at least one hundred acres of land, at the price of $5.00 per acre ; payable as follows: — When title issued to purchaser, title to be given as soon as the company is in a position to do so, Pur- chaser to have possession at once. The land to be as near as possible aa shewn on the annexed sketch plan. Yours truly, W. Fernie, Laud Commissioner." — The lands claimed were not those shewn on the sketch plan, but other lands alleged to have been substituted therefor by Verbal agreement with another employee of the defendant com- pany, at the time of survey. — Held, affirming the judgment appealed from (12 B. C. Kep. 433), but on different grounds, that specific performance could not be decreed in the absence of any proof of authority of the agent to sell the lands of the defendant company, and that the mere fact of invest- ing their employee with the title of "Land Commissioner" did not estop the defendants from denying his power" to sell lands. Elk Lumber Go. v. Crow's Nest Pass Goal Co., xxxix., 169. 7. Tender for land — Agreement for tender — One party to acquire and divide with other — Division iy plan — Reservation of portion of land from grant.} — By agreement through correspondence the G. T. K.. Co. was to tender for a triangular piece of land offered for sale by the Ontario Government contain- ing 19 acres and convey half to the C. P. E.. Co., which would not tender. The division was to be made according to a plan of the block of land with a line drawn through the centre from east to west, the C. P. K. Co. to have the northern half. The G. T. R. Co. acquired the land, but the Govern- ment reserved from the grant two acres in the northern half. In an action by the C. P. R. Co. for specific performance of the agi-eement. — Held, aflirming the judgment of the Court of Appeal (14 Ont. L. R. 41) Maclennan and Duff, JJ, dissenting, that the C. P. R. Co. was entitled to one-half of the land actually acquired by the G. T. R. Co., and not only to the balance of the northern half as marked on the plan. The Court of Appeal directed a reference to the Master in case the parties could not agree on the mode of division. — Held, that such reference was unnecessary and the judgment appealed against should be varied in this respect. Grand Trunk Ry. Co. v. Canadian Pacific Ry. Co., xxxix., 220. 8. Tramway — Contract with municipality — Limited tickets — Speaifid performance — Injunction — Right of action — Par- ties.] — An injunction granted by the judgment of Street, J. (8 Ont. L. B. 642), affirmed by the Court of Appeal for Ontario (10 Ont. L. B. 594), was affirmed by the Supreme Coart of Canada for the reasons given in the courts below. The order of Street, J., restrained the company from operating tramcars in which they did not provide "workmen's tickets" good for passenger fares during certain fixed hours of eadh day in virtue of an agteetnent with the city. The Court of Appeal held that the agreement was intra vires, that the company were (^liged to provide such tick- ets, that it was not necessary to make the Attorney-General a paTty to the action, and that specific performance could be enforced by injunction. Hamilton Street Ry. Co. V. City of Hamilton, xxxix., 673. 9. Vendor and purchaser- — Agreement for sale of land — Principal and agent — Fidu- ciary relationship.'] — Where an intending pUPchaser, by disguising his intentions under the role of a disinterested friend imposed on the confidence thus established, and in- duced the owner of land to accept an offer for the purchase of it which probably would not otherwise have been accepted without in- dependent investigation, specific performance of an agreement for sale thus procured should not be enforced. Fellowes v. Lord Owydyr (1 Sim. 63), discussed and dis- tinguished. Henderson v. Thompson., xli., 445. 10. Vendor and purchaser — Sale of mort- gaged lands — Agreement — Condition prece- dent — Cash payment — Default — Objection to title — Repudiation.] — An agreement for the sale of land provided that the purchase- money was to be paid by instalments "$10,000 cash on the signing of this agree- ment, the receipt of which is hereby acknow- ledged," the remaining instalments to be paid in one, two and four years, with in- terest from the date of the agreement, and there was a proviso making time of the es- sence of the contract and, on default in per- formance of conditions and payment of in- stalments, for the cancellation of the agree- ment by the vendors on giving written notice to the purchaser. The land in question formed part of a larger area, and there was an undischarged mortgage upon the whole property of which both parties had know- ledge at the time of the agreement. The cash payment was not made, the purchaser refusing to pay this amount until the mort- gage was severed and apportioned so that the land mentioned in the agreement should bear only a determinate share thereof, and the agreement amended to this effect. The vendors then withdrew from the agreement by a letter addressed to the purchaser's so- licitor. In an action against the vendors for specific performance. — Held, per Davies and Anglin, JJ. — ^The execution of the agree- ment constituting the relationship of ven- dor and purchaser was the consideration for the cash payment then to be made and, in default of such payment, the obliffation to sell and convey the lands with a good title did not become binding upon the vendors. — Per Duff and Brodeur, JJ. — Payment of the ten thousand dollars in cash was a condi- tion precedent to the constitution of any obligation by the vendors to sell or convey the 1085 SPECIFIC PEEFOEMANCE. 1086 lands and, conaeqnently, to shew good title. — Per Idington, J< — In the circttmstancea the purchaser's refusal to make the cash pay- ment was a repudiatiou of the agreement which deprived him of the right to a decree for specific performance. — Judgment ap- pealed from (1 D. L. R. 331; 1 West. "W. R. 563), reversed. (Leave to appeal to Privy Council was refused, 9th December, 1912.) Gushing r. Knight, xlvi., 555. 11. Vendor and purchaser — Sale of land — Condition dependent — Deferred payment — Disclosure of title — Abstract — Refusal to complete — Lapse of time — Defeasance.] — ^In an agreement for the sale of an interest in land, for a price payable by deferred instal- ments at specified dates, there was a con- dition for defeasance, at the option of tlw vendor, for default in punctual payments, time was of the essence of the contract, and receipt of a deposit on account of the price was acknowledged. iSome time before the date fixed for payment of the first deferred instalment the purchasers made reQuisitions for the production for inspection of the ven- dor's evidence of title to the interests he was selling and the vendor refused to comply with the requisitions. The payment was not made on the appointed date and the vendor declared the agreement cancelled in conse- quence of such default. In suit for specific performance, brought by the purchaser. — Held, affirming the judgment appealed from (17 B. C. Rep. 88), that the vendor was bound, upon requisition made within a rea- sonable time by the purchasers, to produce for their inspection the documents under which he claimed the interests he was sell- ing in the lands ; until he had complied with such demand the purchasers were not obliged to make payment of deferred instalments of the price and, in the circumstances, their failure to make the payment in question was not an answer to the suit for specific per- formance. Gushing v. Knight (46 Can. S. C. R. 555), distinguished. — Per Duff, J. — •In the absence of any express or implied stipulation to the contrary in an agreement respecting the sale of land in British Col- umbia, which is not held under a certificate of indefeasible title, the purchaser is entitled, according to the rule introduced into that province with the general body of the law of England, to the production of a solicitor's abstract of the vendor's title to the interest in the land which he has agreed to sell. Newberry v. Langan, xlvii., 114. 12. Sale of land — Contract — Defeasance — "Time to he of the essence of the agree- ment" — Deferred payments — Notice after default — Laches — Abandonment.] — In an agreement for the sale of lands, for a price of which half was paid and the balance to be paid by deferred instalments at specified dates, there was a clause for forfeiture, both of the agreement and the payments made, upon default in punctual payments ; time was of the essence of the contract and, on default, the vendor bad the right to give the purchasers thirty days' notice in writ- ing demanding payment ; in case of continu- ing default, at the expiration of that time, forfeiture would became effective and the vendor might retake possession and re-sell the lands. On default in payment as pro- vided, a notice was given in the terms men- tioned but only to one of the purchasers, an extension of time was applied for and rrfused and, after thirty days from the time ^L ^ f^'f? ^^^ ^^"'i°"' re-entered. Five days later the purchasers tendered the bal- ance unpaid, which was refused by the rendor on the grounds that no conveyance was tendered for execution and that the purchasers had abandoned the agreement 1 wo weeks later the purchasers sued for specific performance. — Eeld, reversing the judgment appealed from (18 B. C. Rep. ^n), that the danse making time of the essence of the contract had reference, not to the gale dates, but to the time mentioned in the notice; that the notice as given did no comply with the condition of the agree- ment requiring notice to aU of the pur- chasers, and that, in the circumstances of the case, there were not such laches charge- able against the purchasers as would amount to abandonment of their rights under the agreement or deprive them of their remedy of specific performance. Bark-Fong v Cooper, xlix., 14. 13. Vendor and purchaser — Agreement for sale of land — Option — Acceptance — Vncer- tainty as to terms — Condition precedent.] — On 26th Novem!ber, 1910, R. gave C. a mem- orandum respecting the sale of his land, as follows: "In consideration of a payment of $10, I agree to give to Major A. B. Carey, the option of my quarter-section — ^N.E. % of 20, Tp. 12, Medicine Hat, at the rate of $25 per acre. Balance to be paid 1-3 on the last day of January of each year till paid." On the 20th of January, 1911, a letter was written, by C.'s solicitor, to R., as follows: "Major Carey is prepared to make payment of one-third of purchase price, and we are anxious to close the mat- ter out at once. We would suggest that, rather than give an agreement for sale, you execute a transfer of the land in favour of our client and take a mortgage back for un- paid balance. AVe would be obliged if you would let us hear from you at once. We would be pleased to prepare the necessary documents, and you can submit same to your solicitor at Medicine Hat." — Held, re- versing the judgment appealed from (5 Alta. L. R. 125), Davies and Anglin, J J., dissent- ing, that the memorandum constituted an offer requiring acceptance ; that the letter of the solicitor was not an unqualified ac- ceptance of the terms of the contract such as was called for in the circumstances, and that C. was, therefore, not entitled to a decree for specific performance. (Leave to appeal to Privy Council refused, 7th May, 1914.) Roots V. Carey, xlix., 211. 14. Sale of lands — Contract — Agreement for re-sale — Novation — Rescission — Defence to action — Practice — Evidence ■ — Statute of Frauds — Principal and agent — Agent pur- chasing — Disclosure — Findings of fact.] — In a suit for specific performance of a con- tract for the sale of lands an agreement for the re-sale of the lands may be set up as a defence notwithstanding that such re-sale agreement does not satisfy the requirements of the 4th section of the .Statute of Frauds. Judgment appealed from (10 D. L. R. 765), affirmed. — Such an agreement for re-sale af- fords a suflicient reason for refusing a de- cree for specific performance of the original 1087 SPECIFIC PEEFOEMANCB. 1088 contract for sale. — The Supreme Court of Canada refused to review the finding of the courts below that the defendants, while agents for the sale of the property in ques- tion, when purchasing it themselves under the contract for re-sale, had discharged their duty towards the plaintiff in regard to dis- closure of material facts relating to the value of the property. — Per Davies and Id- ington, JJ. — Where the parties to a con- tract come to a. fresh agreement of such a kind that the two cannot stand together the effect of the second agreement is to re- scind the first. Frith v. Alliance Invest- ment Co., xlix., 384. 15. Lease of land — Option for purchase — Acceptance of new lease — Waiver of option.'\ — Where a lease for a term of years gives the ' lessee an option to purchase the land the latter's acceptance during the term of a new lease to 'begin on its expiration is not of itself a waiver or abandonment of the option. Anglin and Brodeur, JJ., dissent- ing. — Judgment of the Appellate Division (30 Ont. L. K. 186), reversed. Mathewson V. Burns, 1., 115. 16. Agreement for sale of land — Inability to perform — Liability to damages — Diminu- tion in price.] — A lease of land for ten years provided that on its termination the lessee could by giving notice, purchase the fee for $22,000. In a suit for specific per- formance of this agreement. — Held, applying the rule in Bain v. Fothergill (L. E.. 7 H. L. 158), Fitzpatrick, C.J. and Davies, J., dis- senting, that if the lessor, without fault, was unable to give title in fee to the land the lessee was not entitled to damages for loss of his bargain. — Per Fitzpatrick, C.J. and Davies, J. — The above rule should not be applied in a case like this where the lease contained onerous conditions binding the lessee to expend large sums in improving the property, and it must have been con- templated by the parties that such expendi- ture would have caused him special damage if he could not purchase the fee. — Judgment appealed against (32 Ont. L. K. 243), af- firmed. Ontario Asphalt Block Go. v. Mont- reuil, lii., 541. 17. Contract — Foreign lands — Sale of lands — Exchange — Jurisdiction of courts of equity — Mutuality of remedy — Relief in personam — Discretionary order — Appeal — Jurisdiction — "Final judgment" — "Supreme Court Act," B. S. C. 1906, c. 139, s. 38(0).] — ^T., resident in the State of Iowa, U.S.A., brought suit in Saskatchewan for specific performance of a contract by which J., resident in Saskatchewan, agreed to sell him lands in iSasfcatchewan, part of the price being the conveyance to J. of lands in Iowa by T. The trial judge decreed specific per- formance of the contract by J., and, on appeal, the full court varied the judgment by ordering that there should be a reference for inquiry and report upon T.'s title to the lands in Iowa, and that upon the filing of such report, either party should be at liberty to apply for such judgment as he might be entitled to (8 Sask. L. ;R. 387). On the appeal to the Supreme Court of Canada the material questions were whether or not the fact that the lands to be exchanged were situated outside the province precluded the courts of Saskatchewan from decreeing specific performance for want of mutuality of relief, and whether or not there was error in making the order of reference, which, in efCeot, gave the plaintiff a second opportunity of proving his title. — Held, Idington, J., dissenting, that the courts of Saskatchewan, as courts of equity acting in personam, have jurisdiction to de- cree specific performance of contracts for the sale of lands situate within the province where the person against whom relief is sough-t resides within their jurisdiction ; that, in the suit instituted by the foreign plaintiff in Saskatchewan, mutuality of relief existed between the parties, and that the discretion of the court appealed from in ordering the reference before the entry of the formal de- cree ought not to be interfered with on the appeal. — ^The jurisdiction of the Supreme Court of Canada to entertain the appeal was questioned by the Chief Justice and Iding- ton, J., on the ground that the judgment appealed from was not a "final judgment." Davies, J., was of opinion that, as the suit was "in the nature of a suit or proceeding in equity," an appeal lay to the Supreme Court of Canada in virtue of s.-s. (c) of s. 38 of the "Supreme Court Act," R. S. C, 1906, c. 139. Anglin, J., thought that, as a matter of discretion, the court might de- cline to hear such an appeal. — Judgment appealed froip (8 Sask. L. R. 387), af- firmed, Idington, J., dissenting. Jones v. Tucker, liii., 431. 18. Agreement for sale of lands — Transac- tions with co-trustees — Necessity of joint action — Delegation of trust — Specific per- formance of contract, xxxvii., 362. See Trusts. 19. Vendor and purchaser — Sale of land — Formation of contract— Conditions — Accept- ance of title — New term — Statute of Frauds — Principal and agent — Secret commission ■ — Avoidance of contract — Fraud, xxxviii., 588. See Contract. - 20. Lessor and lessee — Covenant for re- newal — Option of lessor — Second term — Pos- session by lessee after expiration of term — Construction of deed. Cam. Cas. 486. See Lease. 21. Sale of land — Contract for sale — Tima of essence — Delay of vendor — Vendor 'and purchaser — Description — Statute of Frauds, xlii., 251. See Sale of Lands. 22. Vendor and purchase! — Condition of agreement — Sale of land— Payment on ac- count of price — Cancellation — Notice — Re- turn of money paid — Rescission — Form of action — Practice, xlv., 338. See Action. 23. Broker — Sale of land — Principal and agent — Disclosing material information — Secret profit — Vendor and purchaser — Agent's right to sell or purchase, xlvi., 477. See Broker. 1089 STATUTE. 1090 24. Vendor and purchaser — Sale of land — Deferred payment — Omission of date — Com- pletion of contract — Acceptance by purchaser — New term — Instruments of title—Delivery —Arts. 1025, 1235, U12, 1491-im, 1534 C. C, li., 637. See Sale of Land. SQUATTERS. Title to land — Promise of sale — Entry in land-register — Tenant by sufferance — Squat- ter's rights — Possession in good faith — Evic- tion — Compensation for improvements — Rents, issues and profits — Set-off, xxxix., 47. See Title to Land. ST. JOHN, PORT OF. Ships propelled wholly or in part by steam —Coal barges towed— B. S. C. (1886), c. 80, ss. 58, 59, xxxviii., 169. See Ships and Shipping. STARE DECISIS. 1. Husband and wife — Contract — Separate estate — Security for husband's debt — Inde- pendent advice.] — The confidential relations between husband and wife are such that where the latter conveys or encumbers her separate property for her husband's benefit she is entitled to the protection of inde- pendent advice; without that her action does not bind ber. Cox v. Adams (35 Can. S. C. R. 393), followed, Idington, J., dis- senting. — Only in very exceptional circum- stances should the Supreme Court refuse t6 follow its own decisions. — Judgment of the Court of Appeal (17 Out. L. R. 436), re- versed. Stuart V. Bank of Montreal, xli., 516. 2. Appeal — Jurisdiction — Matter in con- troversy — Municipal by-law — Injunction — Contract — Collateral effect of judgment — Construction of statute — "Supreme Court Act," R. S. C. {1906), V. 139, ss. 36, 39(e), 46, xliii., 650. See Appeal. STATUTE. 1 "Quebec Act, ITt-i" — Criminal law — Champerty.]— The laws relating to cham- perty were introduced into Lower Canada Dy the "Que'bec Act, 1774," as part of the criminal law of England, and as a law ot public order, the principles of which and the reasons for which apply as well to the Province of Quelbec as to England and the other provinces of the Dominion of Canada. Price V. Mercier (18 Can. S. C. R..303), re- ferred to. (Leave to appeal to Privy Coun- eU refused.) Meloche v. D4guire, xxxiv., 24. And see Champerty. 2. Negligence — Railways — Braking ap- paratus—Railway Act (1888), s. 24s— Sand valves— Notice of defects in machinery— Lia- bthty of company — Provident society— Con- tract indemnifying employers-Indemnity and satisfaction— Lord Campbell's Act Art. 1056 G. G. — Bight of action.] — ^The "sander'' and sand-valves of a railway locomotive, which may be used in connection with the brakes in stopping a train, do not consti- tute part of the "apparatus and arrange- ments" for applying the brakes to the wheels required by section 248 of the RaUway Aot of 1888. — iFailure to remedy defects in the sand-valves, upon notice thereof given at the repair shops in conformity with the com- pany's rules, is merely the negligence of an employee and not negligence attributable to the company itself; therefore, the company may validly contract with its employees so as to exonerate itself from liability for such negligence and such a contract is a good answer to an action under article 1056 of the Civil Code of Lower Canada. The Queen v. Orenier (30 Can. S. C. R. 42), followed.— (Q. R. 12 K. B. 1, reversed.) — Girouard, J., dissented, on the ground that the negligence found by the jury was negli- gence of both the company and its employees. (Reversed by Privy Council, [1906] A. C. 187). Grand Trunk Railway Co. v. Miller, xxxiv., 45. 3. Railway crossing — Rate of speed — Crowded districts — Fencing — 51 Vict., c. 29, ss. 191, 259 (D.)—55 & 56 Vict., c. 27, ss. 6 and 8 (D.).] — ^In passing through a thickly peopled portion of a city, town or vUlage a railway train is not limited to the maximum speed of six miles an hour prescribed by 55 & 56 Vict., c. 27, s. 8, so long as the rail- way fences on both sides of the track are maintained and turned into the cattle guards at highway crossings as provided by s. 6 of said Act. Judgment of the Court of Appeal (o Ont. L. R. 313), reversed, Gir- ouard, J., dissenting. Gand Trunk Railway Co. V. McKay, xxxiv., 81. 4. Arbitration and award — British Col- umbia Arbitration Act — Setting aside award — Misconduct of arbitrator — Partiality — Evidence — Jurisdiction of majority — Deci- sion in absence of third arbitrator — Judicial discretion.] — A reference under the British Colum'hia Arbitration Act authorized two out of three ai.)— ^4 yict., c. U (D.)—U Vict., CO. 1 and 6 {3rd Sess.), (Man.) — Construction of contract — Grant in prwsenti.] — The land subsidy of the Canadian Pacific Railway Company authorized by the Act, 44 Viet., c. 1 (D.), is not a grant in prwsenti and, consequently, the period of twenty years ol exemption from taxation of such lands pro- vided by the sixteenth section of the con- tract for the construction of the Canadian Pacific Railway begins from the date of the actual issue of letters patent of grant from the Crown, from time to time, after they had been allotted an^ accepted by the Can- adian Pacific Railway Company. — The ex- emption was from taxation "by the Do- minion, or any province hereafter to be established or any municipal corporation therein." — Held, that when, in 1881, a por- tion of the North-West Territories in which this exemption attached was added to Mani- toba the latter was a proviuce "thereafter established" and such added territory con- tinued to be subject to the said exemption from taxation. The limitations in respect of legislation affecting the territory so added to Manitoba, by virtue of the Dominion Act, 44 Vict., c. 14, upon the terms and conditions assented to by the JIanitoban Acts, 44 Vict. (3rd Sess.), chs. 1 and 6, are constitutional limitations of the powers of the Legislature of Manitoba in respect of such added territory and embrace the previous legislation of the Parliament of Canada relating to the Canadian Pacific Railway and the land subsidy in aid of its construction. — Taxation of any kind at- tempted to be laid upon any part of such land subsidy by the North-West Council, the North-West Legislative Assembly or any municipal or school corporation in the 1095 STATUTE. 1096 North-West Territories is Dominion taxa- tion within the meaning of the sixteenth clause of the Canadian Pacific Railway con- tract providing for exemption from taxation. (Leave to appeal to Privy Council refused, 27th Februairy, 1907.) North Cypress V. Can. Pac. Ry. Co.; Argyle v. Can. Pac. Ry. Co.; Can. Pac. Ry. Co. v. Springdale, xxxv., 551. 14. Constitutional law — Sunday ohserv- ance — Reference to Supreme Court — R. 8, C. c. 135, s. 37—54 d 55 Vict. c. 25, s. h— Legislative jurisdiction.'] — The statute 54 & 55 Vict. c. 25, s. 4, does not empower the Governor-General in Council to refer to the Supreme Court for hearing and considera- tion supposed or hypothetical legislation which the legislature of a province might enact in the future. Sedgewick, J., dissent- ing. • — -The said section provides that the Governor in Council may refer important questions of law or fact touching specified subjects "or touching any other matter with reference to which he sees fit to exercise this power." — Held, Sedgewick, J., contra, that such "other matter" must be ejusdem generis with the subjects specified. (Leave to ap- peal to Privy Council refused, 26th July, 1905). In re Legislation respecting Absten- tion from Laiour on Sunday, xxxv., 581. 15. Railway — Branch lines — Canadian Pacific Railway Co.'s charter — 44 Vict. o. 1 (D.) and schedules — Construction of con- tract — Limitation of time — Interpretation of terms — ''Lay out," "Construct," "Acquire" ■ — "territory of Dominion" — Hansard de- bates — Construction of statute — "The Rail- way Act, 1903.] — The charter of the Cana- dian Pacific Railway Company (44 Vict. c. 1 (D.) and schedules thereto appended), im- poses limitations neither as to time nor point of departure in respect of the con- struction of branch lines ; they may be con- structed from any point of the main line of the Canadian Pacific Railway between C'al- lender Station and the Pacific Seaboard, sub- ject merely to the existing regulation as to approval of location, plans, etc., and with- out the necessity of any further legislation. On a reference concerning an application to the Board of Railway Commissioners for Canada for the approval of deviations from plans of a proposed branch line, under s. 43 of "The Railway Act, 1903," it is competent for objections as to the expiration of limita- tion of time to be taken by the said Board, of its own motion, or by any interested part.v. In re Branch Lines, Canadian Paci- fic Railway, xxxvi., 42. 16. Construction of statute — Toll-bridge — Franchise — Exclusive limits — Measure- ment of distance — Encroachment — 58 Geo. III. c. 20 (L.O.).]— The Act, 58 Geo. III. c. 20 (L.C.), authorized the erection of a toll-bridge across the River Jitchemin, in the Parish of Ste. Claire "opposite the road loading to Ste. Therfese, or as near thereto as may be, in the county of Dorchester," and by s. 6, it was provided that no other bridge should be erected or any ferry used "for hire across the said River Etchemin, within half a league above the said bridge and below the said bridge." — Beld, Nesbitt and Idington, JJ., dissenting, that the sta- tute should be construed as intending that the privileged limit defined should be mea- sured up-stream and oown-stream from the site of the bridge as constructed. Per Nesbitt and Idington, JJ. There was not any ex- pression in the statute shewing a contrary intention, and consequently that the distance should be measured from a straight line on the horizontal plane ; but, per Idington, J., in this case, as the location of the bridge was to be "opposite the road leading to Ste. Therftse," and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not be maintained. Rouleau v. Pou- liot, xxxvi., 224. 17. Constitutional law — Imperial Acts in force in Yukon Territory— 2 d 3 Vict. c. 11 {Imp.)—R. 8. C. c. 50 — Title to land^- "'Porrens System" — Transfer by registered owner — Fraud — Litigious rights — Notice of lis pendens — Irregular registration — In- dorsement upon certificate of title — -Construc- tion of statute — "Land Titles Act, 1894" — Caveat— 51 & 58 Vict. c. 23, s. 126 (D.) — 61 Vict. c. 32, s. 14 (Z).) — Pleading— Objec- tions taken on appeal — Yukon Territorial Court Rules — Yukon Ordinances, 1902, c. 17 —Rules 113, 115, 117 — Waiver— Estoppel] — The provisions of the Imperial Act, 2 & 3 Vict. c. 11, in respect to the registration of notices of litispendence and for the pro- tection of bond fide purchasers pende lite are of a purely local character and do not extend their application to the Yukon Ter- ritory by the introduction of the English law generally as it existed on the fifteenth of July, 1870, under the eleventh section of "North-West Territories Act," R. S. C. 1886, c. 50. — Under the provisions of "The Land Titles Act, 1894," s. 126, a bond fide pur- chaser from the registered owner of land subject to the operation of that statute i» not bound or affected by notice of litispend- ence which had been improperiy filed and noted upon the folio of the register con- taining the certificate of title as an incum- brance or charge upon the land. The ex- ception as to fraud referred to in the 126th section of the Act means actual fraudulent transactions in which the purchaser has par- ticipated and does not include constructive or equitable frauds. The Assets Company v.: Mere Roihi (21 Times L. R. 311), re- ferred to and approved. Syndicat Lyonnais du Klondyke V. McQrade, xxxvi., 251. And see Yukon Tekkitokt. 18. Construction of statute — Appeal — Special leave — Judge in chambers — Appeal to full court — Jurisdiction.] — No appeal lies to the Supreme Court of Canada from an order of a judge of that court in chambers granting or refusing leave to appeal from a decision of the Board of Railway Commis- sioners under s. 44 (3) of the Railway Act, 1903. (Leave for an appeal to the Privy Council was refused, 2nd Aug., 1905.) Wil- liams v. Grand Trunk Railway Co., xxxvi., 321. 19. Construction of statute — Appeal per saltum — Winding-up Act — Application under s. 76 — Defective proceedings.] — ^Leave to ap- peal per saltum, under s. 26 of the Supremt 1097 STATUTE. 1098 Court Act, cannot be granted in a case un- der the Dominion Winding-up Act,— An ap- plication under s. 76 of the Winding-up Act, for leave to appeal from a judgment of the Supreme Court of New Brunswick was re- fused where the judge had made no formal order on the petition for a winding-up order and the proceedings before the full court were in the nature of a reference rather than of an appeal from his decision. In re Gushing Sulphite Fibre Co., xxxvi., 494. 20. Constitutional law — Construction of statute — - B. N. A. Act, 1867, s. 92, s.-s. 10 (c) — Legislative jurisdiction — Parliament of Canada — Local works and undertakings — Recital in preamble — Enacting clause — Gen- eral advantage of Canada, etc. — Sulject matter of legislation — Presumption as to legislation of Parliament ieing intra vires.] — -In construing an Act of the Parliament of Canada, there is a presumption in law that the jurisdiction has not been exceeded. ; — Where the subject matter of legislation by ihe Parliament of Canada, although situate wholly within a province, is obviously be- yond the powers of the local legislature, there is no necessity for an enacting clause specially declaring the works to be for the general advantage of Canada or for the ad- vantage of two or more of the provinces.' — • Semile, per Sedgewick and Davies, J J. (Gir- ouard and Idington, JJ., contra), a recital in the preamble to a special private Act, enacted by the Parliament of Canada, is not such a declaration as that contemplated by s.-s. 10 (c) of s. 92 of the British North America Act, 1867, in order to bring the subject matter of the legislation within the jurisdiction of Parliament. SewsOn v. On- tario Power Co., xxxvi., 596. And see Peactice. 21. Construction of statute — Mining law — Staking claim — Initial post — Occupied ground — Curative provision — R. S. B. C. c. 135, s. 16—61 Vict. c. S3, s. 4 (B.C.) ]— In staking out a claim under the mineral Acts of British Columbia the fact that ini- tial post No. 1 is placed on ground previ- ously granted by the Crown under said Acts does not necessarily invalidate the claim, and s.-s. (g) of s. 4 of 61 Vict. c. 33 amend- ing the "Mineral Act" (E. S. B. C. c. 135) may be relied on to cure the defect. Madden V. Connell (30 Can. S. C. R. 109), distin- guished. Judgment appealed from (11 B. C Eep. 37), affirmed, Idington, J., dissenting. Clark V. Docksteader, xxxvi., 622. 22. Railway — Farm crossings — Juris- diction of Board of Railway Commissioners for Canada — Statutory contract — Railway Glauses Act of 1851 — Grand Trunk Railway Act, 1852— "Railway Act, 1888"— "Railway Act, 1903" — Appeal — Controversy involved — Jurisdiction.] — Orders directing the es- tablishment of farm crossings over railways subject to "The Railway Act, 1903," are ex- clusively within the jurisdiction of the Board of Railway Commissioners for Canada. — The right claimed by the plaintiff's action, instituted in 1904, to have a farm crossing established and maintained by the railway company, cannot be enforced under the pro- visions of the Act, 16 Vict. c. 37 (Can.), in- corporating the Grand Trunk Railway of Canada. — Judgment appealed from reversed, Idington, J., dissenting in regard to damages and costs. Grand Trunk Railway Co. v. Perrault, xxxvi., 671. 23. Construction of statute — "Marsh Act,'' R. 8. N. S. 1900, c. 66, ss. 22, 66^urisdic- tion of marsh commissioners — Assessment of lands — Certiorari — Limitation for grant- ing writ — Practice — Expiration of time — Delays occasioned ly judge — Legal maxim —Order none pro tunc] — ^Where a statute authorizing commissioners to assess lands provided that no writ of certiorari to review the assessment should bp granted after the expiration of six months from the initiation of the commissioners' proceedings : — Held, Girouard, J., dissenting, that an order for the issue of a writ of certiorari made after the expiration of the prescribed time was void notwithstanding that it was applied for and judgment on the application reversed before the time had expired. — Held, per Taschereau, C.J. — That where jurisdiction has been taken away by statute, the maxim actus euriw neminem gravaiit cannot be ap- plied, after the expiration of the time pre- scribed, so as to validate an order either by antedating or entering it nunc pro tune- that, in the present case, the order for cer- tiorari could issue as the impeachment of the proceedings of the inferior tribunal was sought upon the ground of want of jurisdic- tion in the commissioners, but the appel- lants were not entitled to it on the merits. — Per Girouard, J. (dissenting). — Under the circumstances, the order in this case ought to be treated as having been made upon the date when judgment upon the ap- plication was reserved by the judge. Upon the merits, the appeal should be allowed as the commissioners had no jurisdiction in the absence of proper notices as required by the twenty-second section of the "Marsh Act," R. S. N.,S. 1900, c. 66.— Per Davies, J.— The statute allows any person aggrieved by the proceedings of the commissioners to re- move the same into the Supreme Court by certiorari; the claim for the writ on the ground of jurisdiction was either abandoned or unfounded ; and the statutory writ could not issue after the six months had expired. Tn re Trecothic Marsh, xxxvii . '"^. 24. Breach of trust — Accounts — Evidence — Nova Scotia "Trustee Act," 2 Edw. VII. c. IS — Liability of trustee — A". S. Order XXXII.. r. 3— Judicial discretion — Statute of Limitations.] — By his last will N. be- queathed shares of his estate to his daugh- ters A. and C. and appointed A. executrix and trustee. 0. was weak-minded and in- firm and her share was directed to be in- vested for her benefit and the revenue paid to her half yearly. A, proved the will, as- sumed the management of both shares and also the support and care of C. at their common domicile, and apnlied their joint in- comes to meet the general expenses. No de- tailed accounts were kept sufficient to com- ply with the terms of the trust nor to shew the amounts necessarily expended for the support, care and attendance of C, but A. kept books which shewed the general house- hold expenses and consisted, principally, of admissions against her own interests. After 1099 STATUTE. 1100 the decease of both A. and C. the plaintiffs obtained a reference to a master to ascertain the amount of the residue of the estate com- ing to C. (who survived A.) and the re- ceipts and expenditures by A. on account of C On receiving the report the judge re- ferred it back to be varied, with further in- structions and a direction that the books kept by A. should be admitted as primA facie, evidence of the matters therein con^ tained (see 37 N. S. Rep. pp. 452-464), This order was affirmed '— the Supreme Court of Nova Scotia in haneo. — Held, af- firming the judgment appealed from (37 N. S. Rep. 451), that the allowances foP such expenditure need not be restricted to amounts actually shewn to have been so ex- pended ; that, under the Nova Scotia statute, 2 Bdw. VII. c. 13, and Order XXXII., rule 3, a judge may exercise judicial discretion towards relieving a trustee from liability for technical breaches of trust and, for that purpose, may direct the admission of any evidence which he may deem proper for the taking of accounts. Cairns v. Murray, xxxvii., 163. 25 Gonstitutional law ■ — ■ Parliament . — Power io legislate — Railways — "Railway Act," 1S88, ss. 187, 188— Protection of cross- ings — Party interested — Railway committee — "Railway Act, 1903" — Board of Railway Commissioners.'] — ^Sections 187 and 188 (rf "The Railway Act," 1888," empowering the Railway Committee of the Privy Council to order any crossing over a highway of a rail- way subject to its jurisdiction to be pro- tected by gates or otherwise, are intra vires of the Parliament of Canada. Idington, J., dissenting. — (Sections 186 and 187 of "The Railway Act, 1903," confer similar powers on the Board of Railway Commissioners.) — These sections also authorize the committee to apportion the cost of providing and main- taining such protection between the railway company and " any , person interested." — Seld, Idington, J., dissenting, that the mu- nicipality in which the highway crossed by the railway is situate is r "person inter- ested" under said sections. City of Toronto V. Grand Trunk Railway Co., xxxvii., 232. 26. Construction of statute — Canadian waters — Three-mile none — Fishing iy for- eign vessels — Legislative jurisdiction — Sei- zure on high seas-:— Pursuit ieyond territo- rial limit — International law - — Constitu- tional law — B. N. A. Act, 1867, s. 91, s.-s. 12: — Seacoast fisheries — R. S. C. c. 94, ss. 2, 3, ^.] — Under the provisions of the "British North America Act," 1867, s. 91, s.-s. 12, the Parliament of Canada has exclusive jur- isdiction to legislate with respect to fisher- ies, within the three-mile zone off the sea- coasts of Canada. — ^A foreign vessel found violating the fishery laws of Canada within three marine miles off the sea-coasts of thS- Dominion may be immediately pui-sued be- yond the three-mile zone and lawfully seized on the high seas. Girouard, J., dissenting. The judgment appealed from (11 B. C. Rep. 473), was affirmed. The Ship "North" v. The King, xxxvii., 385. 27. Contract — Breach of conditions-^Li- quid^ted damages — Penalty — Cumulative remedy — Openation of iramway^^onsiruc- tion and location of lines — Use of highways r^-Car service — Tvme-tables — Municipal control — Territory annexed nfter contract ^Abandonment of monopoly — S3' Vict, c, 99 (Om*.).} — Except where otherwise specially provided in the agreement between the To- ronto Railway Company and the City, of Toronto set forth in the schedules to c. 99 of the statutes of Ontario, 55 Vict.,, in 1892, the right of the city to determine, decide upon and direct the establishment of new lines of tracks and tramway service, in the manner therein prescribed, applies only within the territorial limits of the city as constituted at the end of the contract. Judg- ment appealed from (10 Ont. L. R. 657) reversed, Girouard, J., dissenting, — The city, and not the company, is the proper author- ity to determine, decide upon and direct the establishment of new lines, and the service, time-tables, and routes thereon. Judgment appealed from affirmed, Sedgewick, J., dis- senting. — 'As between the contracting par- ties, the company, and not the city, is the proper authority to determine, decide upon and direct the time at which the use of open cars shall be discontinued in the autumn and resumed in the spring, and when the cars should be provided with heating appa- ratus and heated. Judgment appealed from reversed, Girouard, J., dissenting.: — Upon the failure of the company to comply with re- quisitions for extensions as provided in the agreement, it has no right of action against the city for grants of the privilege to others ; the right of making such grants accrues, ipso facto, to the city, but is not the only remedy which the city is entitled to invoke. Judgment appealed from affirmed, Sedge- wick, J., dissenting. — ^Cars starting out_ be- fore midnight as day cars may be required by the city to complete their routes, al- though it may be necessary for them to run after midnight or transfer their passengers to a car which would carry them to their destinations without payment of extra fares, but at midnight their character would be changed to night cars and all passengers en- tering them after that hour could be obliged to pay night fares. Sedgewick, J., dissent- ing. (Varied on appeal by Privy Council, 26th April, 1907; 49 Can. Gaz. 102). Tto- ronto Ry. Co. v. City of Toronto, xxxvii., 430. 28. Execution of statutory potvers — Arhi- tration ■ — Injunction — Mandamus — Con- struction of statute— 59 Vict. c. 4i (N.S.) .] — ^The powers conferred upon the town council of the Town of North Sydney, N.S., by the Nova Scotia statute, 59 Vict. c. 44. for the purpose of obtaining a water supply give them no rights in respect to the diver- sion of watercourses except subject to the provisions of the fourth section of the Act, and after arbitration proceedings taken to settle compensation for injurious affection to property resulting from the construction or operation of the water-works. Sauniy v, 2'hc Water Commissioners of London ([1906] A. C. 110), followed. (Leave to appeal to Priv> Council was refused, 17th July, 1906) . Leahy v. Town of North Syd- ney, xxxvii., 464. And see Riveks and Streams, 1101 STATUTE. ilO? 29^ CuMse of action — Limitation of actions — Contract — Foreign judgment — Yukon Ordinance, c. SI of 1890 — Statute of James — Statute) of Anne — Lex fori — Lex loci con- tractus — Absence of dehtor.'} — Under the provisions of the Yukon Ordinance, c. 31 of 1890, the right to recover simple contract debts in the Territorial Court of Yukon Ter- ritory is absolutely barred after the expira- tion of six years from the date when the cause of action arose notwithstanding that the debtor has not been for that period resi- dent within the jurisdiction of the court. Judgment appealed from reversed, Girouard and Davies, JJ., dissenting. Rutledge v. United Stated Savings and Loan Co.. xxxvii., 546. 3Q. Construction of statute — R. ft. C. c. 135, s. 27 — Appeal — Jurisdiction — Neic trial — Discretion — Ontario appeals — GO & 61 Vict. c. si.] — Per Fitzpatrick, C.J., and Duff, J.— Section 27 of R. S. C. (1886), c. 135, prohibits au appeal from a judgment of the Court of Appeal for Ontario granting, in the exercise of judicial discretion, a new trial in the action. — Per Davies, J. — Under tie rule in Town of Aurora v. Village of Markkam (32 Can S. C. R. 457), no appeal lies from a judgment of the Court of Appeal for Ontario on motion for a new trial unless it comes within the cases mentioned in 60 & 61 Vict. c. 34, or special leave to appeal has been obtained. Appeal from judgment of the Court of Appeal (11 Ont. L. R. 171), quashed. Canada Carriage Co. v. Lea, xxxvii., 672. 31. Construction of will — Usufruct — Sulstitution —z- Partition 'between institutes ■ — Validating legislation — 60 Vict. c. 95 (Q.) — Construction of statute-^Restraint of alienation — Interest of substitutes — Devise of property held by institute under partition — Devolution of corpus of estate en nature — Accretion — Res judicata — Arts. 868. 9^3 C. C.]^The effect of the statute, 60 Vict. e. 95 (Que.), respecting the will of the late Amable Provost, read in conjunction with the provisions of the will and codicils there- in referred to, is to declare the deed of par- tition between the beneficiaries thereunder final and definitive and not merely provi- sional ; the judgment of the Court of Queen s Bench, on the appeal side, taken under that statute, has no other effect. Neither the statute nor the judgment referred to sanc- tions the view that the said will and codi- cils constitute more, than one substitution; there was but one substitution created there- under iir favour of all the 'joint legatees and consequently accretion takes place among them Tyithin the meaning of article 868 ot the Civil Code, in the event of any legacy lapsing, under the "terms of the will, upon the death of an institute without issue prior to the opening of the substitution. In such case, the share of the institute dying with- out issue devolves to the other joint legatees, as well in usufruct as in absolute .ownership, and, consequently, none of the institutes or substitutes have the right of disposing of any portion of the testator's, estate, by will or otherwise, prior to the date of the open- ing of the substitution. — Judgment ■ ap- pealed from (Q. R. 28 S. C. 257), reversed. DeHetel v. Goddard (66 L. J. P. C. 00), distinguished. — (Reversed by Privv Council [1908] A. C. 341). Prevost v. Lamarche, xxxvtii., 1. 32. Construction of 3 Edw. VII. c. 57— Railway subsidies — Conditions — Cost of construction — Method of estimating — Rolling stock and equipmsnt.'\ The pro- visions of the Act, 3 Edw. VII. c. 57, auth- orizing the granting of subsidies in aid of the construction of railways are not manda- tory, but discretionary in so far as the grant of the subsidies by the Governor in Coun- cil is concerned. — On a proper construction of the said Act it does not appear to have been the intention of Parliament that the cost of rolling stock and equipment should be included in the cost of construction in estimating the amount of subsidy payable to the company in aid of the "Pheasant Hills Branch" of their railway under the provi- sions of that Act, notwithstanding that the said Act did not specially exclude the con- sideration of the cost of equipment in the making of such estimate as had been done in former subsidy Acts with similar objects, and that the Governor in Council imposed the duty of efficient maintenance and equip- ment of the branch as a condition of the grant of the subsidy. Canadian Pacific Ry. Co. V. The King; Re Pheasant Hills Branch, xxxviii., 137. And see Appeal. 33. Criminal law — Crown case reserved — Appeal — Extension of time for nottce of appeal — "Criminal Code," s. 102^ — Order after expiration of time for service of notice ■ — Jurisdiction.^ — The power given by s. 10-4 of the "Criminal Code" (R. S. C. (1906), c. 146) , to a judge of the Supreme Court of Canada to extend the time for service on the Attorney-General of notice of an appeal ir a reserved Crown case may be exercised after the expiration of the time limited by the code for the service of such notice. Banner v. Johnston (L. R. 5 H. L. 157), and Vaughan v. Richardson (17 Can. S. C. R. 703), followed. Gilbert v. The King, xxxviii., 207. 34. Appeal — Order extending time — Juris- diction — R. 8. G. c. 135, s. Ji2 — Practice.'] — The court refused to entertain a motion to quash the appeal on the ground that it had not been taken, within the sixty days limited by the statute and that an order by a judge of the court appealed from after the expira- tion of that time was ultra vires and could not be permitted under s. 42 of the Su- preme ^nd Exchequer Courts Act, R. S. C (1886), c. 135. Temiscouata Ry. Co. v. Clair, xxxviii., 230. And see Trespass. 35. Appeal — Action for declaration and injunction— 60 & 61 Vict. c. 34, s. 1 (d.) — Municipal corporation — Water rates — Discrimination.']— The Act 60 & 61 Vict. 34 (D) relating to appeals from the Court of Appeal for Ontario does not . authorize an appeal in an action claiming only a declara- tion that a municipal by-law is illegal and an injunction to restrain its enforcement City of Hamilton v. Hamilton Distillery Co.; 1103 STATUTE. 1104 City of Hamilton v. Hamilton Brewing As- sociatiofi, X3^xviii., 2S9. And see Municipal Cobpobation. 36. Criminal law — Disorderly house — Common letting house — Place for letting — • Betting booth — Race-course of incorporated association — Grim. Code, 1892, ss. 191, 204 —Vrim. Code, 1906, ss. 227, 235.]— A per- ambulating booth used on the race-course of Hn incorporated racing association for the purpose of making bets is an ''office" or "place" used for betting between persons resorting thereto as defined in s. 197 of the Criminal Code, 1892 (Crim. Code, 1906, s. 227). — Sub-section 2 of s. 204 of the former Code (now s. 235) which exempts from the provisions of the main section (dealing with the recording or registering of bets, etc.J , bets made on the race-course of an incorpo- rated association does not apply to the of- fence of keeping a common betting-house. Girouard and Davies, JJ., dissenting. — Judgment of the Court of Appeal (12 Ont. L. R. 615), affirmed, Girouard and Davies, JJ., dissenting. Saunders v. The King, xxxviii., 382. 37. Construction of statute — i Edw. VII. c. 41— R. 8. C. (1906) c. 152, s. 127— Con- viction — PenaHy.} — By 4 Edw. VII., c. 41 (R. S. C. 1906, c. 152, s. 127), for a first offence against Part II. of the Canada Tem- perance Act a fine may be imposed of "not less than $50" and for a second offence of "not less than $100."^fl'eW, that for a first offence the justice cannot impose a fine of more than $50. Maelennan, J., dissenting. In re Richard, xxxviii., 394. And see "Canada Temperance Act." 38. Municipal corporation — ; Exemption from taxes — Resolution of council — Dis- crimination — Estahlishment of industry — Construction of 36 Vict. c. 81, s. 1 (N.B.).] —By s. 1 of 36 Vict. c. 81, the New Bruns- wick Legislature authorized the town coun- cil of Woodstock from time to time to "give encouragement to manufacturing enterprises within the said town by exempting the pro- perty thereof from taxation for a period of not more than ten years by a resolution de- claring such exemption." In 1892 the coun- cil passed the following resolution : "That any company establishing a woollen mill in the town of Woodstock be exempted from taxation for a period of ten years." — Held, per Davies, Idington and Maelennan, JJ., that this resolution provided for discrimina- tion in favour of companies and against individuals who might establish a woollen mill or mills in the town and was therefore void. City of Hamilton, v. Hamilton Distil- lery Co. (38 Can. S. C. R. 239), followed.— Held, per Davies, J. — The resolution ex- empting any company and not any property of a company was too indefinite and uncer- tiiin to be the basis of a claim for exemp- tion. — ^In 1893 a woollen mill was estab- lished in Woodstock by the Woodstock Wol- len Mills Co., and operated for some years without taxation. In 1899 the mill was sold under execution and two months later the Oarleton Woollen Co. (appellants) were in- corporated and acquired the said mill from the purchaser at the sheriff's sale and have operated it since. — Held, that the appellants could not by so acquiring the mill which had been exempted be said to have "established a woollen mill" without Shewing that when it was acquired it had ceased to exist as such, which they had not done. — Judgment appealed from, affirming that of Barker, J., at the hearing (3 N. B. Eq. 138) affirmed. Carleton Woollen Co. v. Town of Wood- stock, xxxviii., 411. 39. Appeal — Railway Act — Expropria- tion — Appeal from award — Choice of forum — Curia designata.] — ^By s. 168 of 3 Edw. VII. c. 58, amending the Railway Act, 1903 (R. S. C. (1906), c. 37, s. 209), if an award by arbitrators on expropriation of land by a railway company exceeds $600 any dis- satisfied party may appeal therefrom to a Superior Court, which in Ontario means the High Court or the Court of Appeal (Inter- pretation Act R. S. C. [1906] c. 1, s. 34, s.-s. 26). — Held, that if an appeal from an award is taken to the High Court there can be no further appeal to tlie Supreme Court of Canada, which cannot even give special leave. (Leave to appeal to Privy CouncU granted on terms, 19th July, 1907). James Bay Ry. Co. v. Armstrong, xxxviii. 511. 40. Constitutional law — British Tforth America Act. 1867 — Provincial legislative jurisdiction ■ — "Alberta Act," 4 £ 5 Edw. VII. c. 3 (D.) — Con. Ord. N. W. T. (1898), c. 52—6 Edw. VII. c. 28 (Alta.)— Medical profession — Practising without license ■ — Criminal law — Practice — Special leave to appeal — R. S. C. (1906) , c. 139. s. 37 (c).] — ^The "Medical Profession Act," 6 Edw. VII. c. 28 (Alta.), is intra vires of the legislative jurisdiction of the Legislature of Alberta and a member of the College of Physicians and Surgeons of the North-West Territories may be validly convicted there- under for the offence of practising medicine, surgery, etc., for gain and reward, in the Province of Alberta, without complying with its requirements as_ to registration and li- cense, notwithstanding that the College of Physicians and Surgeons of the North-West Territories had not been previously dissolved and abolished by order of the Governor in Council, in conformity with the provisions of s. 16 (3) of "The Alberta Act." DoUe V The Temporalities Board (7 App. Cas. 136), distinguished. Lafferty v. Lincoln, xxxviii., 620. 41. Constitutional law — Liabilities of pro- vince at Confederation — Special funds — Rate of interest — Trust funds or debt — Award of 1870— B. N. A. Act, 1867, ss. HI and 142.] — Among the assets of the Province of (jan- nda at Confederation, were certain special funds, namely, U. C. Grammar School Fund, U. C. Building Fund and U. C. Improvement Fund, and the province was a debtor in re- spect thereto and liable for interest thereon. By s. Ill of the B. N. A. Act, 1867, the Dominion of Canada succeeded to such lia- bility and paid the Province of Ontario in- terest thereon at five per cent, up to 1904. In the award made in 1870 and finally es- tablished in 1878, on the arbitration under s. 142 of the Act, to adju.st the debts and assets of Upper and Lower Canada, it was adjudged that these funds were the property 1105 STATUTE. 1106 of Ontario. In 1904 the Dominion Govern- ment claimed the right to reduce the rate of interest to four per cent., or if that was not acceptable to the province to hand over the principal. On appeal from the judgnieut of the Exchequer Court in an action asking for a declaration as to the rights of the pro- vince in respect of said funds : — Edd, affirm- ing said judgment (10 Ex. C. R. 292), Id- ington, J., dissenting, that though before the said award the Dominion was obliged to hold the funds and pay the interest thereon to Ontario, after the award the Dominion had a right to pay over the same with any accrued interest to the province and there- nfter be free from liability in respect there- of. — Held, also, that until the principal sum was paid over the Dominion was liable for interest thereon at the rate of five per cent, per annum. Atty.-Oen. of Ontario v. Atty.- Oen. of Canada, xxxix., 14. 42. Municipal corporation — Montreal city charter— 52 Vict. c. 79, s. 120 (Que.) —Con- struction of statute — "Current year" — As- sessment and taxes — Limitation of action — - Local improvements — Special tax.'] — ^By s. 120 of the charter of the City of Montreal, 52 Vict. c. 79 (Que.), the right to recover taxes is prescribed and extinguished by the lapse of "three years, in addition to the current year, to be counted from the time at which such tax, etc., became due." A special assessment for local improvements became due on the 14th of March, 1898, and action was brought to recover the same on the 4th of February, 1902.^ — Held, affirming the judgment appealed from (Q. E. 15 K. B. 479), the Chief Justice and Duff, J., dis- senting, that the words "current year" in the section in question, mean the year com- mencing on the date when the tax became due and that the time limitedi for prescrip- tion had not expired at the time of the in- stitution of the action. Vanier v. City of Montreal, xxxix., 151. 43. Appeal — Stated case — Provincial leg- islation — Assessment — Municipal taw — Foreign company — "Doing business in Hali- fax."'}— An Ontario company resisted the imposition of a license fee for "doing busi- ness in the City of Halifax" and a case was stated and sulimitted to the Supreme Court of Nova Scotia for an opinion as to such liability. On appeal from the decision of the said court to the Supreme Court of Canada, counsel for the City of Halifax contended that the proceedings were really an appeal against an assessment under the city charter, that no appeal lay therefrom to the Supreme Court of the province, and, therefore, and because the proceedings did not originate in a superior court, the ap- peal to the Supreme Court of Canada did not lie. — Held, per Fitzpatrick, C.J. and Duff, J., that as the appeal was from the final judgment of the court of last resort in the province, this court had jurisdiction under the provisions of the Supreme Court Act and it could not be taken away by pro- vincial legislation. — Per Davies, J. — Pro- vincial legislation cannot impair the juris- diction conferred on this court by the Su- preme Court Act. In this ease the Supreme Court of Nova Scotia had jurisdiction under Order XXXIII., Rule 1 of the Judicature Act. — Per Idington, J. — If the case was stated under the Judicature Act Rules the appeal would lie, but not if it was a sub- mission under the charter for a reference to a judge at request of a ratepayer. — ^By s. 313 of the said charter (54 Vict., c. 58), as amended by 60 Vict., c. 44, "Every in- surance company or association, accident and guarantee company established in the City of Halifax, or having any branch office, office or agency therein shall . . . pay an annual license fee as hereinafter men- tioned . . . Every other company, corpor- ation, association or agency doing business in the City of Halifax (banks, insurance com- panies or associations, etc., excepted) shall pay an annual license fee of one hundred dollars." — Held, that the words "every other company" in the last clause were not subject to the operation of the ejusdem generis rule, but applied to any com- pany doing business in the city. Judgment appealed from overruled on this point. — ^A carriage company agreed with a dealer in Halifax to supply him with goods and give him the sole right to sell the same, in a terri- tory named, on commission, all monies and securities given on any sale to be the pro- perty of the company, and goods not sold within a certain time to be returned. The goods were supplied and the dealer assessed for the same as ,his personal property. — Held, Davies and Maclennan, JJ., dissent- ing, that the company was not "doing busi- ness in the City of Halifax" within the meaning of s. 313 of the charter, and not liable for the license fee of one hundred dollars thereunder. — Judgment of the Su- preme Court of Nova Scotia (39 N. S. Rep. 403), affirmed, but reasons overruled. City of Halifax v. McLaughlin Carriage Co., xxxix., 174. 44. Constitutional law — Construction of statute — "Crown Procedure Act'' B. 8. B. G. c. 57 — Duty of responsible ministers of the Crown — Refusal to snimit petition of right — Tort — Bight of action — Damages.] — Under the provisions of the "Crown Pro- cedure Act," R. 'S. B. C, c. 57, an impera- tive duty is imposed upon the Provincial Secretary to submit petitions of right for the consideration of the Lieutenant-Governor within a reasonable time after presentation and failure to do so gives a right of action to recover damages. After a decisive re- fusal to submit the petition has been made, the right of action vests at once, and the fact that a submission was duly made after the institution of the action is not an answer to the plaintiff's claim. (Appeal to Privy Council dismissed, ([19081 A. C. 4ol). Norton V. Fulton, xxxix., 202. And see Action. 45. Assignment by mortgagor for benefit of creditors — Priorities — Assignment of claims of execution creditors— Redemption- Assignments and Preferences Act, 11 (0»«.).]— After judgment for foreclosure o£ mortgage or redemption judgment creditors of the mortgagor with executions m the sheriff's hands were added as parties in the master's office and proved their claims. The master's report found that they were the only incumbrancers, and fixed a date for payment by them of the amount due to the mortgagees. After confirmation of the 1107 STATUTE. 1108 report S. obtained as^gnments of these judg- m^ts,' and was added as a party. He then paid the amount due the mortgagees, and the master took a new account and ap- ppinted a day for payment by the mortgagor of the amount due S. on the judgments as well ^s the mortgage. This report was con- firmed, and the mortgagor having made an assignment for benefit of creditors before the day fixed for redemption an order was made by a judge in chambers adding the assignee as a party, extending the time for redemp- tion and referring the case ba.ck. to the master to take a new account and appoint a new day. — Seld, affirming the judgment of the Court of Appeal (13 Ont. L. R. 127), that under the provisions of s. 11 of the Assignments and Preferences Act the as- signee of the mortgagor could only redeem on payment of the total sum due to S. under the mortgage and the judgments assigned to him. SoQtt V. Swanson, xxxix., 229. 46. Municipal Act — Vote on iy-law — Local option — Division into wards— Single or multiple voting — 3 Edw. VII., c. 19, s. 355 — B. S. 0. (1897), c. U5, s. i^.?.]— Section 355 of the Ontario Municipal Act, 3 Edw. VII., c. 19, providing that "when a munici- pality is divided into wards each ratepayer shall be so entitled to vote in each ward in which he has the qualification necessary to enable him to vote on the by-law" does not apply to the vote on a local option 'by-law required by s. 141 of the I/iquor License Act (K. S. O. [1897] c. 245). Judgment of the Court of Appeal (13 Ont. L. R. 447), afiirming that of the Divisional Court (12 Ont. L. R. 488), afiirmed. Sinclair v. Town of Owen Sound, xxxix,, 236. 47. Negligence — Railway Act 1903 — 3 Edw. VII., c. 58, s. Z31 — Animals at large- Construction of statute — Words and terms — "At large upon the highway or otherwise'' — Fencing of railway — Trespass from lands not belonging to owner.'] — C.'s horses strayed from his enclosed pasture situated beside a highway which ran parallel to the company's railway, entered a neighbour's field adjacent thereto, passed thence upon the track through an opening in the fence, ' which had not been provided with a gate by the com- pany, and were killed by a train. There was no person in charge of the animals, nor was there evidence that they got at large through any negligence or wilful act at- tributable to C' — Held, affirming the judg- ment appealed from (16 Man. R. 323), that, under the provisions of the fourth sub-sec- tion of s. 237 of "The Railway Act, 1903," the company was liable in damages for the loss sustained notwithstanding that the ani- mals had got upon the track while at large in a place other than a highway intersected by the railway. Canadian Pacific Railway Co. y. Carruthers, xxxix., 251. 48. Mechanics' lien — Completion of conidence.] — In an action in the Supreme Court of British Columbia claiming damages under the "Employers' Liability Act," and, al- terna/tively under the "Workmen's Compen- sation Act," the plaintiff, at the trial, aban- doned the claim under the former Act and, thereupon, the judge dealt with the case as a claim under the "Workmen's Compensation Act," found that the plaintiff's deceased hus- band came to his death solely in consequence of his own "wilful and serious misconduct," and, therefore, under s.-s. 2(c) of s. 2 of the Act, held that she was precluded from ob- taining compensation in consequence of his death. — Per Davies, Duff and Anglin, JJ. — The right of appeal from a decision in the course of proceedings to which article 4 of the second schedule of the "Workmen's Com- pensation Act" applies is available only for questioning the determination of the court or judge upon some question of law. Decisions upon questions of fact in adjudicating upon a claim brought before the Supreme Court under s.-s. 4 of s. 2 of that Act are not subject to appeal. Whether or not there is any reasonable evidence to support a finding of wilful and serious misconduct is an ap- pealable question. — ^In the circumstances of the case the court held, Davies and Anglin, JJ., dissenting, that there was not reason- able evidence to support the finding of wil- ful and serious misconduct. — The appeal from the judgment of the Court of Appeal for British Columbia (15 B. C. Rep. 198), was dismissed, Davies and Anglin, JJ., dis- senting. British Columbia Sugar Refining Co. V. Oranick, xliv., 106. 76. Construction of statute — Bridges — Crossing by engines — Condition precedent — R. S. O. (1897) c. 242—3 Edw. VII. c. 7 s. 4S~i Edw. VIL c. 10, s. 60.]— R. S. O. (1897) c. 242, as amended by 3 Edw. VII. c. 7, s. 43, and 4 Edw. VII. c. 10, s. 60, pro- vides as follows: — "10. (1) Before it shall be lawful to run such engine over any high- way whereon no tolls are levied, it shall be the duty of the person or persons proposing to run the same to strengthen, at hia or their own expense, aU bridges and culverts to be crossed by su<:h engines, and to keep the same in repair so long as the highway is so used. — (2) The costs of such repairs shall be borne by the owners of different engines in proportion to the number of engines run over such bridges or culverts. R. S. O. 1887, c. 200, s. 10.— (3) The two preceding sub-sections shall not apply to engines used for threshing purposes or for machinery in construction of roadways of less than eight tons in weight. Provided, however, that before crossing any such bridge or culvert it shall be the duty of the person or persons proposing to run any engine or machinery mentioned in any of the sub-sections of this section to lay down on such bridge or culvert planks of such suf- ficient width and thickness as may be neces- sary to fully protect the flooring or sur- face of such bridge or culvert from any in- jury that might otherwise result thereto from the contact of the wheels of such engine or machinery ; and in default thereof the person in charge and his employer, if any, shall be liable to the municipality for all damage resulting to the flooring or sur- face of such bridge or culvert as aforesaid. 3 Edw. VII. c. 7, s. 43 ; 4 Edw. VII. c. 10, s. 60." — Held, affirming the judgment of the Court of Appeal (19 Ont. L. R. 188), Fitzpatrick, C.J. and Girouard, J., dissent- ing, that the strengthening of a bridge or laying of planks over it is a condition pre- cedent to the right to run an engine over the same, and any engine crossing without observing such condition is unlawfully on the bridge and liable for injury resulting therefrom. — Held, also, Fitzpatrick, C. J., and Girouard, J., dissenting, that planks re- quired by s.-s. 3 over a bridge or culvert were not intended merely to protect the sur- face from injury by contact with the Wheels of the engine or machinery passing over it, but was also to guard against the danger 1119 STATUTE. 1120 of the flooring giving way. Goodison Thresher Co. v. Township of McNdb, xliv., 187. 77. Rivers and streams — Industrial im- provements — Raising height of dam — Nuis- ance — Damages — Expertise and arbitration — Right of action — Measure of damages — B. S, Q., 1888, arts. 5535, 55S6.'\— The pro- visions of the statutes respecting the im- provement of watercourses in the Province of Quebec, permit the raising of the height of dams erected by proprietors of lands ad- joining streams; this right is subject to the liability to make compensation for all damages resulting to other persons from such works. — The mode of ascertainment of such damages by the arbitration of experts provided by article 5536 of the [Revised Statutes of Quebec, 1888, does not exclude the right of action to recover compen- sation in the courts. — In such cases the measure of damages is the amount of compensation for injuries sustained up to the time of the action; they ought not to be assessed once for all, en bloc, but recourse may be reserved in regard to future damages arising from the same cause. Gale V. Bureau, xliv., 305. And see Rivers and Streams. 78. Homestead lands — "Land Titles Act," 6 Bdw. VII. c. H; 8 Edw. VII. c. 29 (Sask.) — Exemption from seizure — Regis- tered incumbrance — "Easemptions Ordin- ance," N. W. T., Con. Ord., 1898, c. 27.]— Homestead lands, exempt from seizure under execution by the North-West Territories "Exemptions Ordinance," are not aftected by any charge or incumbrance in conse- quence of the registration of writs of exe- cution against the homesteader under the provisions of the "Land Titles Act" of the Province of Saskatchewan, 6 Edw. VII. e. 24, s. 129, as amended by 8 Edw. VII. c. 29, s. 10; consequently, the transferee of such lands under conveyance from such homesteader acquires them free and clear of any Incumbrance resulting from the reg- istration of such execution. Judgment ap- pealed from (3 Sask. L. B. 280), affirmed. Northwest Thresher Co. V. Fredericks, xliv., 318. 79 Liquor laws — "Liquor Licensie Ordin- ance," ss. 37 and 51 — Cancellation of license —Jurisdiction of judge — 7 Edw. f^^-J; ^l s. U (AZta.)]— The provisions of s. 57 of "The Liquor License Ordinance' (Con. Ord, 1898, c. 89), confer upon a judge of the Supreme Court of Alberta power to direct the cancellation of liquor licenses which have been obtained in violation of s-s 3, of s. 37, of that ordinance as amended bv s 14 of "the Liquor License Amendment Act, 1907," 7 Edw. VII. c. 9, of the Pro- vince of Alberta. Finseth v. Ryley Hotel Co., xliv., 321. 80 Assessment and taxes— Construction of statute— Words and phrases— "Terrain" "Lot" — Immovable property — Charter of the Town of Westmount — 56 Vict, c, H, s. JOO ]— Section 100 of the statute of the Pro'vincfe of Quebec, 56 Vict. c. 54, referred to as "The Westmount Charter," authorized the town council to levy assessments "on every lot, town lot, or portion of a lot, whether built upon or not, with all build- ings and erections thereon." The words used in the French version of the statute were, "toute terrain, lot de ville ou portion de lot," The by-law enacted in virtue of the statute purported to impose /a tax upon "all real estate" within the municipal- ity, and under the by-law the property of the company, respondents, consisting of their equipment for the transmission of gas and electric currents installed upon and under the public streets, squares, etc., of the town, was assessed as subject to taxation and described on the roUs as "gas-mains and equipment, poles, transformers, wires, etc." In an action hy the municipal cor- poration for the recovery of the amount of taxes claimed in virtue of the by-law and assessment. — Held, Idington, J., dissenting, that neither poles carrying electric wires nor gas-mains, and their respective equip- ments, placed on or under the public streets, etc., of the town, can be deemed taxable real estate within the meaning of the word "terrain" used in the French version, nor of the word "lot" used in the English ver- sion of the provisions made by s. 100 of the statute, 56 Vict. c. 54 (Que.). Judg- ment appealed from (Q. R. 20 K. B. 244), affirmed. The Town of Westmount v. Mont- real Light, Heat and Power Co., xliv., 364. 81. Fire insurance — Policy — Conditions — Notice of loss — Imperfect proofs — Non-pay- ment of premium — Waiver — Application of statute — Remedial clause — N.' W. Ter. Ord., 1903 (1st sess.), c. 16, s. 2.]— The premium on a policy of fire insurance was not paid at the time the policy was delivered, but on request, credit was given for the amount and a draft for the same by the insurance company, accepted by the insured, remained due and unpaid at the time the property in- sured was destroyed by fire. — Held, that, in an action to recover the amount of the in- surance, the non-payment of the premium was not available as a defence. — The policy was subject to the statutory condition re- quiring prompt notice of loss by the insured to the company ; by another condition the insured was required, in making proofs of loss, to declare how the fire originated so far as he knew or believed. Upon the. oc- currence of the loss, the company's local agent gave notice thereof to the company, and informed the insured that he had done so and that the company had acknowledged receipt of his notice. The insured gave no further notice to the company. Forms were then supplied by the company for making proofs of loss, and they were completed by an agent of the company and signed and sworn to by the insured, the origin of the fire being therein stated to be unknown. On examination for discovery the insured stated that, at the time he signed the de- claration, he entertained an opinion as to the origin of the fire, and the company's adjuster reported a similar opinion as to its origin. An adjustment of the amount of the loss was then proceeded with by the several companies carrying insurances on the property in which the defendant company took part, but, after payment by the other companies of their proportionate shares ac- cording to the adjustment, the defendants repudiated liability on the grounds of want of notice as required by the statutory con- 1121 STATUTE. 112-2 dition and non-disclosure of the opinion entertained by the insured as to the origin of tlie fire. — Held, reversing the judgment appealed from (3 Sask. L. R. 219), that, in respect of both conditions, the default was the result of mistake on the part of the insured, and in the circumstances of the case, the provisions of s. 2 of "The Fire Insurance Policy Ordinance," N. W. T. Ord., 1903 (1st sess.), c. 16, should be applied and the insurance held not to be forfeited by reason of default of notice or imperfect compliance with the condition as to proofs of loss. Prairie City Oil Co. v. Standard Mutual Fire Ins. Co. (44 Can. S. C. R. 40), followed. Bell Bros. v. Hudson Bay Ins. Co., xliv., 419. 82. Petition of right — Contract — Powers of Commissioners of the Transcontinental Railway — Liability of Crown — Construction of statute— S Edw. VII. c. 7i.]— "The Na- tional Transcontinental Railway Act," 3 Edw. VII. c. 71 (D.), does not confer powers upon the Commissioners of the Transcontinental Railway in respect to the inspection and valuation of lands required for the purposes of the "Eastern Division" of the railway ; consequently, a petition of right wUl not lie for the recovery of re- muneration for services of that nature. — Judgment appealed from (13 Ex. C. R. 155), affirmed. Idington, J., dissenting. John- ston V. The King, xliv., 448. 83. Construction of statute — U.-W. Ter. Con. Ord., 1898, c. 34 — Extra-judicial seiz- ures — Chattel mortgage — Sale through bail- iff — Excessive costs — Penalty — Waiver — The "Bank Act." R. S. C, 1906, c. 29, s. 91 — Interest — Contract— Excessive charges — Settlement of account stated — Voluntary payment — Surcharging and falsifying — Re- duction of rate — Removal of mortgaged pro- perty — Negligence — Measure of damages.'] — The parties to a chattel mortgage may waive , the provisions of the third section of the North-West Territories Ordinance, 1898, c. 34, in respect to the expenses of the seiz- ure and sale of the mortgaged property. Rolson V. Biggar ((1907) 1 K. B. 690), followed. Judgment appealed from (3 Alta. L. R. 166), reversed. — Where interest in excess of the rate of seven per cent, per annum has been voluntarily paid upon the settlement of accounts stated between a bank and its debtor, the amount so paid cannot be recovered back from the bank by the payer. In respect of unsettled accounts between a bank and its debtor, charges of interest in excess of the rate limited by s. 91 of the "Bank Act," R. S. C, 1906, c. 29, made in virtue of an agreement between the parties, should be reduced to the rate of seven per cent, per annum upon the sur- charging and falsifying of such accounts. Judgment appealed from (3 Alta. L. R. 166) , afiBrmed, Idington, J., dissenting. — ^Where loss occurs to mortgaged property in conse- quence of want of reasonable care in its re- moval from the place of seizure to the place at which it is sold under the authority of a chattel mortgage, the proper measure of damages recoverable by the mortgagor is the amount of depreciation in value caused by the negligent manner in which the removal was effected. In the present case, the evi- dence being insufficient to justify the assess- ment made by the trial judge, it was referred back to have the damages properly assessed. Judgment appealed from (3 Alta. L. R 166) , varied. Duff and Angliu, JJ., dissent- ing. Union Bank of Canada v. McEugh, xliv., 473. 84. Municipal corporation — Water service — Statutory authority — Construction of stat- ute — Water for domestic, fire and other purpose — Motive power — Discretion of council.] — The Charter of a town (50 Vict. c. 58, s. 6 [N.B.]), provides that "the town council of the Town of Campbellton are hereby authorized and empowered to provide for the said town a good and suffi- cient supply of water for domestic, fire and other purposes." — SeU, per Fitzpatrick, C.J. and Duff, J. (Idington, J., contra, Davies and Anglin, J J. duUtante) , that the statute empowers the municipality to furn- ish water for the use of the customer in working a printing-press. — The town coun- cil, by by-law, fixed the rates to be paid for water including "printing presses, one service, 1% pipe or less, per year, $30." C, proprietor of a newspaper and printing establishment, connected his premises with the water mains by a two-inch pipe and received water for a year for his motor, paying said rate therefor. He then con- tinued the use of the water for some months when the council passed a resolution that newspaper proprietors should be notified that the supply would be cut off at a certain date, which was done. C. brought an action for damages to his business. — Meld, per Iding- ton. J. — The council had no authority to make the contract with C. ; there was no authority in the absence of a special eon- tract with the town, to place a two-inch service pipe for receipt of water ; and if the municipality bad power to enter into this agreement it was under no duty to ex- ercise it. — Per Fitzpatrick, C.J. and Duff, J., that the municipality having entered upon the service of the appellant's motor was bound to continue it unless and until the council in the iond fide and reasonable exercise of its discretion thought it de- sirable to discontinue it in the interest of the inhabitants as a whole. — Per Davies and Anglin, JJ. — If any contract existed it was one under which C. was entitled to a supply of water for his motor so long as the town council should, in its discretion, deem it advisable to continue it. There was no evidence to warrant the jury's finding that the council was guilty of negli- gence and exercised its discretion maid fide. —Per Fitzpatrick, CJ. and Duff, J.— The circumstances disclosed were such as to war- rant a finding of unfair discrimination against C, but the damages awarded were excessive. — ^Judgment ordering a new trial (39 N. B. Rep. 573), affirmed. Crockett v. Town of Campbellton, xliv., 606. 85. Appeal — Special leave — • "Supreme Court Act," R. S. C. (1906) c. lS9._s. S7 (c) — Interests involved — Construction of statute — "Alberta Local Improvement Act," 7 EdiD. TII. c. 11, and amendments — "B. N. A. Act, 1S67," s. 1S5—53 Yict. c. i (D.) — « n n afi 1]33 STATUTE. 1134 Assessment and taxation — Constitutional law — Railway aid — Land sitbsidy — Crown lands — Interests of private owner—" Free . gra/nt" — "Owner" — "Real property. "l^-S^pR- cial leave to appeal from the judgment of the Supreme Court of Alberta (2 Alta. L. B. 446) was granted, under the provisions of s. 37 (o) of the "Supreme Court Act," R. S. C. 1906, c. 1391, because of the magni- tude of the interests involved. — ^Provincial legislatures may authorize the taxation of bt'nelicial or equitable interests acquired in lands wherein the Crown, in the right of the Dominion of Canada, holds some inter- est and the legal estate. The legislature of a province may provide for the levy and col- lection of taxes so imposed by the transfer of the interests affected by such taxes. — The Dominion statute, 53 Vict. c. 4, authorized the granting of aid for the construction of a railway by a subsidy in Crown lands, and, by s. 2, it was declared that such grants should be "free grants" subject only to the payment, on the issue of patents therefor, of the costs of survey and incidental ex- penses, at the rate of ten cents per acre. The lands in question formed part of the land subsidy, earned by the railway company and reserved and set apart for that purpose by order-in-council, which had been con- veyed by deed poll to the appellants by tho railway company prior to the issue of a Crown grant. While still unpatented, these lands had been rated for taxes and con- demned for arrears of taxes under the sta- tute of Alberta, 7 Edw. VII. c. 11. — Held. that the interest of the appellants in the said lands was subject to taxation and liable to be dealt with under the provincial sta- tute, although letters patent of grant there- of by the Crown had not issued. — Held, also, that allotment of these lands as "free grants," under the subsidy Act, related only to exemption from the usual charges made in respect of public lands by or on behalf of the Ctown, except the cost of survey, etc., and did not exempt the appellants' interest therein from taxation under the provisions of the provincial statute, although neither the legal estate nor any interest therein re- maining in the Crown could be liable to taxation. — Judgment appealed from (2 Alta. L. R. 446) , affirmed. Rural Municipality of North Cypress v. Canadian Pacific Railway Co. (35 Can. S. C. K. 550), distinguished. Calgary & Edmonton Land Co. v. Attorney- Oeneral of Alberta, xlv., 170. 86. Municipal corporation — Closing streets — "Passage of by-law" — Coming into force of by-lam — Time for appealing — 3 c6 Ji Edw. VII. c. 6Jf (Man.) — "Winnipeg City Char- ter" — Construction of statute.'\ — A munici- pal by-law for the diversion and closing of certain highways and the transfer of the land to a railway company provided that it should "come into force and effect" on the execution of a supplementary agreement be- tween the municipal corporation and a rail- way company "duly ratiiied by council;" it also determined the classes of persons and property entitled to compensation in conse- quence of being injuriously affected by the diversion and closing of the streets. The statute (3 & 4 Edw. VII. c. 64, s. 708, s.-s. c (1)), conferring these powers, gave per- sons dissatisfied with the determination the right to appeal to a judge "within ten days after the passage of the by-law." Another by-law was subsequently enacted by which the first by-law was "ratified and confirmed and declared to be now in force." The de- fendiants, who had been exchided from the class of persons to receive compensation, appealed to a judge, under the section of the statute above referred to within ten days after the enactment of the second by-law. — Held, that the terms "within ten days after the passage of the by-law" in the statute had reference to the date when the by-law affecting the streets and determining the classes entitled to compensation became ef- fective ; that the first by-law did not come into force and effect in such a manner as to injuriously affect the defendants until it was ratified and confirmed by the sub- sequent by-law, and, consequently, the de- fendants' appeal came within the time limited by the statute. — Judgment appealed from (20 Man. R. 669), affirmed. City of Winnipeg r. Brock, xlv., 271. 87. Railways — Construction of statute — "The Railway Act," R. 8. C. (1906), o. 37, ss. 77, 315, 318(2), 323— (D. 1 Edw. VIL c. 53)^(Man.) 52 Vict. c. 2; 53 Vict. c. 17; 1 Edw. VII. c. 39— Board of Railway Commissioners — Complaints — Evidence — Agreement for special rates — Unjust dis- crimination — Practice — Form, of order (fn reference.] — In virtue of an agreement with the Government of Manitoba, validated by statutes of that province and of the Parlia- ment of Canada, the Canadian Northern Railway Company established special rates for the carriage of freight, etc, to points in Manitoba, and the Canadian Pacific Rail- way Company reduced its rates, which had been in force prior to the agreement, in order to meet the competition resulting therefrom. The complaint made to the Board of Railway Commissioners for Canada by the respondents was, in effect, that as simi- lar proportionate rates were not provided in respect of freight, etc., to points west of the Province of Manitoba there was unjust discrimination operating to the prejudice of shippers, etc., to and from the western points. On questions submitted for the con- sideration of the Supreme Court of Canada. — Heid, that the facts mentioned are cir- cumstances and conditions, within the mean- ing of the "rRailway Act" to be considered by the Board of Railway Commissioners in determining the question of unjust discrim- ination in regard to both railways ; that such facts and circumstances are not, in law, conclusive of the question of unjust dis- crimination, but the effect, if any, to be given to them is a question of fact to be considered and decided by the Board in its discretion. (Cf. The Montreal Park and Island Railway Co. v. The City of Montreal (43 Can. S. C. R. 256).) Canadian Pacific Ry. Co. V. Board of Trade of Regina, xlv., 321. 88, Board of Railway Commissioners — Jurisdiction — Private siding — Construction of statute — "Railway Act," R. 8. C, 1906, c. 37, as. 26a, 226— (D.) 8d9 Edw, VIL c. 32, s. 1.] — Notwithstanding provisions in an agreement under which a private industrial spur or siding has been constructed entitling 1125 STATUTE. 1136 the railway company to make use of it for the purpose of affording shipping facilities for themselves and persons other than the owners of the land upon which it has been built, the Board of Railway Commissioners for Canada, except on expropriation and com pensation, has not the power, on an applica- tion under s. 226 of the "Railway Act," (,R. S. C, 1906, c. 37), to order the construc- tion and operation of an extension of such spur or siding as a branch of the railway with which it is connected. Blackwoods Limited v. The Canadian Northern Railway Co. (44 Can. S. C. R. 92), applied. Duff. J., dissenting. Glover Bar Coal Co. v. llnmherston, xlv., 346. 89. Negligence — Risk of employment — Dangerous works and materials — Warnings and instructions — Employers' liaMlity • — Damages — Personal injury — Limitation of action— "Railway Act," R. S. C, 1906, c. 37, s. 306 — "Construotion and operation of railway."'^ — The limitation of one year, in respect of actions to recover compensation for injuries sustained "by reason of the construction or operation" of railways, pro- vided by s. 306 of the "Railway Act" (R. S. C, 1906, c. 37), relates only to injuries sustained in the actual construction or op- eration of a railway ; it does not apply to cases where injuries have been sustained by employees engaged in works undertaken by a railway company for procuring or preparing materials which may be necessary for the construction of their railway. Can- adian Northern Ry. Co. v. Roiinson ( (1911) A. C. 739), applied; judgment appealed frofn (21 Man. R. 121), affirmed. (Leave to appeal to Privy Council refused. 20th March, 1912.) Canadian Northern Ry. Co. V. Anderson, xlv., 355. And see Negligence. 90. Municipal corporation — Assessment and taxation — Meetings of council — Court of Revision — Transacting business outside limits of municipality — Place of meeting — Revision of assessment rolls — By-laws — -Sale for arrears of taxes — Construction of stat- ute— 55 Vict. G. 33, s. 83{a) (B.C.)—R. S. B. C, 1897, c. lU— Statutory relief— Estop- pel— Acquiescence — Laches — Limitation of action.] — Per Fitzpatrick, C.J., and Iding- ton and Anglin, JJ. — Prior to the amend- ment of the British Columbia "Municipal Act, 1892," by the "Municipal Amendment Act, 1894," 57 Vict. (B.C.), c. 34, s. 15, municipal councils subject to those statutes had no power to hold meetings for the transaction of any administrative, legisla- tive or judicial business of the municipal corporation at a place outside of the ter- ritorial boundaries of the municipality. — Per Fitzpatrick, C.J. and Idington, Duff, and Anglin, JJ. — Courts of revision organ- ized under the British Columbia municipal statutes, have no power to exercise their functions as such, except at meetings held within the territorial limits of the munici- pality where the property, described in the assessment rolls to be revised by them, is situate. — Section 15 of the "Municipal Amendment Act, 1894," inserted in the "Municipal Act, 1892" (B.C.), a new pro- vision, s. 83(a), as follows: "All meetings of a municipal council shall take place within the limits of the municipality, ex- cept when the council have unanimously re- solved that it would be more convenient to hold such meetings, or some of them, out- side of the limits of the municipality." — Held, Brodeur, J., dissenting, that there was no proof of such a unanimous resolution as the statute requires. — The councU of the re- spondent municipality, without any formal resolution as provided by the amended stat- ute, held its meetings during several years at a place outside the limits of the munici- pality, and organized courts of revision there. These courts held all their meetings at the same place as the council, and assumed to revise the municipal assessment rolls at those meetings. The council approved the rolls so revised and enacted by-laws, from year to year, levying rates and authorizing the collection of taxes on the lands men- tioned in. the rolls, and, after notice as pro- vided by the statutes, sold lauds so assessed and alleged to be in arrear for the taxes so imposed. ■ — • Held, Brodeur, J., dissenting, that the assessment rolls were invalid, that the by-laws levying the rates and authoriz- ing the collection of taxes on the lands men- tioned therein were null and void, and that the sales of the lands so made for alleged arrears of taxes were illegal and of no ef- fect. — Per Duff and Anglin, JJ., Brodeur, J., contra. — The default in payment of taxes, by the appellant, and his subsequent inac- tion and silence, while aware of the fact that his lands had been sold for alleged ar- rears of taxes, did not disentitle him from taking advantage of the statutory proced- ure respecting the contestation of sales for arrears of taxes either by estoppel, ac- quiescence or laches. The provisions of s. 126(3) of the "Municipal Act, 1892" (now R. S. B. C. 1897, c. 144, g. 86(2)), have no application to invalid by-laws by luuni- cipal councils on occasions when they could not perform legislative functions. — The judg- ment appealed from was reversed, Brodeur, J., dissenting, on the ground that, as the council had held its first meeting in each jear within the limits of the municipality and adjourned for the purpose of holding its next meetings at the place outside of trie municipality where all other meetings were held, the by-laws approving of the as- sessment rolls and those levying rates and authorizing the collection of taxes were valid and the sale of the lands in question for arrears of such taxes was legal and ef- fective. Anderson v. Municipality of South Vanoouver, xlv., 425. 91. "Torrens System" — Priority of right — Registration — Caveat — Notice — Con- struction of statute — Saskatchewan "Land Titles Act," 6 Sdw. VII. c. 2J,— Equities be- tween purchasers — Assignment of contract — Conditions — Right enforceable against reg- istered owJier.]— Under the provisions of the Saskatchewan "Land Titles Act" (6 Edw. VII. c. 24), the lodging of a caveat m the land titles office in which the title to the lands in question is registered, prevents the acquisition of any legal or equitable in- terest in the lands adverse to or in deroga- tion of the claim of the caveator.— A com- pany, being registered owner of lands under the Act, entered into a -written agreement to sell them to P., who assigned his inter- est in the contract to G., who then agreed 1137 STATUTE. 1128 to transfer his equitable interest, thus ac- quired, to A. Subsequently, without know- ledge of A.'s interest, McK. & B. acquired a like interest from G. A caveat claiming- interest in the lands was then lodged by, A., in the proper land titles office, and, with- out inquiry or actual notice of the registra- tion of the caveat, McK. & B. afterwards obtained the approval of the company to the assignment which had been made to them. In an action for specific performance. — Held, per Davies, Idington, Anglin and Brodeur, JJ., that as the purchasers from G. were on equal terms as to equities, A. had priority in point of time at the date when his caveat was lodged ; that such priority had been preserved by the registration of the caveat, and that the subsequent advant- age which would, otherwise, have been se- cured by the company's approval of the as- signment to McK. & B. was postponed to any equitable right which A. might have to a conveyance. And, further, per Idington, J., that, irrespective of the lodging of the caveat, A. had prior equity to the subse- quent assignees. — The agreement by the company provided that no assignment of the contract should be valid unless it was for the whole of ^the purchaser's interest and was approved by the company, and also that the assignee should become bound to discharge all ihe obligations of the pur- chaser towards the company. Until the time of the approval of the assignment to McK. & B., none of these conditions had been complied with.^ — Held, per Davies, Id- ington, Anglin and Brodeur, JJ., that the conditions in restriction of such assign- ments of thei original contract could be in- voked only by the company. — Held, per Duff, J., dissenting, that, as the rights of G. against the company bad never become vested in A., according to the provisions of the contract, he had acquired no enforce- able right against the company, the regis- tered owner of the land, and, consequently, he had no legal or equitable interest in them which could be protected by caveat. — Judgment appealed from (4 Sask. L. R. Ill), affirmed, Duff, J., dissenting. Mo- Killop and Benjafield v. Alexander, xlv., 551. 92. Constitutional law — Construction of statute— B. N. A. Act, 1867, s. 92, s.-s. 2— B. S. Q. 1888, s. 1191 (i), 1191 (o) ; (Que.) 57 Vict. c. 16, s. 2; 6 Edw. VII. c. 11, s. 1— Legislative jurisdiction — "Direct taxation within the province" — Succession duty — Extra-territorial movables — Decedent domi- ciled in province.l — The legislative author- ity of a province in the matter of taxation conferred by s.-s. 2 of s. 92 of the "British North America Act, 1867," which authorizes the levying of "direct taxation within the province," extends to the imposition of duties upon the transmission of movables having a local situs outside the provincial boundaries which form part of the succes- sion of a decedent domiciled within the province. Woodruf v. The Attorney-Gen- eral for Oratorio (1908), A. C. 508, dis- tinguished. Judgment appealed from (Q. R. 20 K. B. 164), reversed, Davies and Anglin, JJ., dissenting. — At the time of the death of C. L. 0., lltb April, 1902, the statutes in force in the Province of Quebec relating to succession duties provided that "all trans- missions, owing to death, of the property in. usufruct or enjoyment of movable and im- movable property in the province shall be liable to the following taxes, calculated upon the value of the property transmitted, after deducting debts and charges existing at the time ^ of the death, etc." Subse- quently, by 6 Edw. VII. c. 11, a clause was added (s. 1191(c)), as follows: "The word 'property' within the meaning of this section shall include all property, whether movable or immovable, actually situate or owing withta the province, whether the de- ceased at the time of his death had his domicile within or without the province, or whether the debt is payable within or with- out the province, or whether the transmis- sion takes place within or without the province, and all movables, wherever situate, of persons having their domicile (or resid- ing) , in the Province of Quebec at the time of their death," which was in force at the time of the death of H. H. C, 26th Decem- ber, 1906. Succession duties were levied, in respect of both estates upon the whole value of the property devolving including, in each case, movable property locally sit- uated in the United States of America. The action was to recover back those portions of the duties paid in respect of the value of the movables situated outside the limits of the Province of Quebec.— JTefd, reversing the judgment appealed from (Q. R. 20 K. B. 164), Davies and Anglin, J J., dissenting, that the movable property situated outside the limits of Quebec forming part of the succession of H. H. O. was subject to the duty so imposed. — On an equal division of opinion among the judges of the Supreme Court of Canada the judgment appealed from stood^ affirmed in so far as it held that the movable property situated outside the limits of Quebec forming part of the estate of C. L. G. was not liable to such taxation. The King v. Cotton, xlv., 469. 93. Municipal corporation — Statutory powers — Electric light and power — Water- works — Immovable outside boundaries — Pur- chase on credit — Promissory notes — Hy- pothec — By-law — Loans — Approval of rate- payers — Special rate — Sinking fund — Con- struction of statute — (Que.) 8 Edw. VII. c. 95— R. S. Q., 1909, tit. XI. — "Cities and Towns Act."] — The council of the Town of Shawinigan Falls, acting under a special Act of incorporation, 8 Edw. VII. c. 95, and the "Cities and Towns Act," R. S. Q., 1909, Title XI., enacted a by-law authoriz- ing the purchase by the municipality of the appellants' electric light and power plant, which was situated outside the municipal, boundaries, but within twenty miles thereof, for the purpose of establishing a system of electric lighting and waterworks within the municipality. The price of the property was to be paid in part by annual instal- ments, to be secured by the promissory notes of the municipal corporation, and the bal- ance, being the amount of a subsisting hy- pothec and interest thereon, was to be sat- isfied by the corporation assuming the hy- pothecary obligations. Previous to enact- ment the by-law had not been approved by a vote of the ratepayers, and it did not im- pose a special rate to meet interest and establish a sinking fund, as required by ■ article 5668 R. S. Q., 1909. — Held, affirming the judgment appealed from (Q. R. 19 K. B. 1129 STATUTE. 546) , Anglin, J., dissenting, that the by-law was invalid. — Held, per Davies, Idington and Duff, JJ., that the municipal corpora- tion had no power to establish works out- side the boundaries of the municipality. Per Anglin, J., dissenting, that in view of the situation of the electric and power plant, the peculiar circumstances of the case, and the special provisions of the Act incorporat- ing the town, it was competent for the municipal corporation to acquire the pro- perty and to establish and maintain the works in question. — Per Davies, J., Anglin, J., contra, that the. by-law was invalid for want of provision, either in itself or in an- other by-law contemporaneously enacted, fix- ing the necessary rate for the purpose of meeting interest and establishing a sinking fund, as required by article 5668 R. S. Q., 1909. — Per Idington, J., Anglin, J., contra, that the by-law was one which required the approval of the ratepayers of the municipal- ity, as provided by article 5783 R. S. Q., 1909, respecting loans, and, as their assent had not been obtained prior to enactment the by-law was invalid. — Per Anglin, J. — The statutory obligation in respect of the imposition of a special rate to meet in- terest and establish a sinking fund would be discharged by the levy of the necessary rates for those purposes from year to year until the debt to be incurred was extin- guished. Shawinigan Mydro-Blectric Com- pany V. Shawinigan Water and Power Com- pany, xlv., 585. 94. Mortgage — Manitoba "Real Property Act," — Power of sale — Special covenant — Notice — Statutory supervision — Registered title — Eguitaile rights — Possession hy mort- gagee — Limitation of action — Construction of statute— R. S. M., 1902, c. U8. s. 15 — "Real Property Limitation Act," R. 8. C, 1902, c. 100, s. 20.]— In respect of lands subject to the operation of the "Real Pro- perty Act," R. S. M., 1902, c. 148, mort- gagees have no registered interest, but merely obtain powers of disposing thereof ; these powers do not vest as incidental to the estate mortgaged, but are efficacious only by virtue of the statute. Where the mortgaffe stipu- lates for a power of sale, on default, with- out notice, and contains no proviso dis- pensing with the official supervision re- quired by the statute, a sale by the mort- gagee, purporting to be made under that power, without compliance with the require- ments of s. 110 of the Act or an order of the court, cannot operate to extineuish the registered title of the mortgagor. Judgment appealed from (20 Man. R. 522), affirmed. Idington and Anglin, JJ., dissenting. — Per Davies, Duff and Brodeur, J.T.. affirming the judgment appealed from (20 Man. R. 522). — The registered title of a mortgagor in lands subject to the operation of the "Real Property Act," R. S. M., 1902, c. 148, and of persons claiming through them, are protected by the provisions of the 75th section of that statute denying the acquisi- tion of title adverse to or in derosation of that of the registered owner of such lands by length of possession only : the limita- tion provided bv s. 20 of the "Real Property Limitation. Act," R. S. M., 1902, c. 100, in favour of mortgagees, has no application to lands after they have been brought under 1130 -the '^Real Property Act." Smith v. Na- tional Trust Co., xlv., 618. 95. Construction of statute — "Creditors' Relief Act"— 9 Edw. VH. c. J,8, s. 6, ss. 4 (Ont.) — Contesting creditor's lien — "Assign- ments and Preferences Act" — 10 Edw. VII. c. 64, s. H (0»i.).]— Section 6, s.-s. 4, of the "Creditors' Relief Act" of Ontario pro- vides that "where proceedings are taken by a sheriff for relief under any provisions re- lating to interpleader, those creditors only who are parties thereto and who agree to contribute pro rata in proportion to the amount of their executions or certificates to the expense of contesting any adverse claim shall be entitled to share in any benefit which may be derived from the contestation of such claim so far as may be necessary to satisfy their executions or certificates." Sec- tion 14 of the "Assignments and Preferences Act" is as follows: — "14. An assignment for the general benefit of creditors under this Act shall take precedence of attach- ments,, garnishee orders, judgments, execu- tions not completely executed by payment and_ orders appointing receivers by way of equitable execution subject to the lien, if any, of an execution creditor for his costs, where there iS' but one execution In the sheriff's hands, or to the lien, if any, for his costs of the creditor who has the first execution in the sheriff's hands." — Held, affirming the judgment of the Court of Ap- peal (24 Ont Ij. R. .356, suh nom. Re Hen- derson Roller Bearings, Ltd.), which af- firmed that of the Divisional Court (22 Ont. L. R. 306), that the preferential lien given by the former Act to the contesting creditor is not taken away by said s. 14 of the "Assignments and Preferences Act." Martin v. Fowler, xlvi.. 119. 96. Constitutional law — Construction of statute — Quebec "Sunday Act" — 7 Edw. VII. c. i2, amended by 9 Edw. VII. c. 51 — Prohibition of theatrical performances — Local, municipal and police regulations — Criminal law — Legislative jurisdiction — Validation by federal legislation — "Lord's Day Act," R. S. C, 1906, c. J53.]— In the "Act respecting the observance of Sunday," 7 Edw. VII. c. 42 (Que.), as amended by 9 Edw. VII. c. 51 (Que.), the provisions prohibiting theatrical performances on Sun- day are not of the character of local, muni- cipal or police regulations. On the proper construction of the legislation, treated as a whole, they purport to create offences against criminal law and. consequently, are not within the legislative competence of a pro- viijplal legislature unddr the "British North America Act, 1867." The Attorney-General for Ontario v. The Hamilton Street Railway Co. ([1903] A. C. 524), followed. The leg- islation in question derives no validity from the provisions of the "Lord's Day Act," R. S. C, 1906, c. 27. Judgment appealed from (Q. R. 20 K. B. 416), reversed, Iding- ton and Brodeur, JJ., dissenting. — Per Id- ington, J., dissenting. — The provisions of s. 2 of the statute 7 Edw. VII. c. 42 (Que.), are severable from one another as well as from the other provisions of the statute, and, consequently, although other provisions may be ultra vires, the prohibition in respect of theatrical performances on Sunday is a 1131 STATUTE. 1133 police regulation which is within the com- petence of the provincial legislature.— Per Brodeur, J., dissenting. — The legislation in guestion deals merely with local matters af- fecting police regulations and civil rights within the province and, consequently, is intra vires of the Legislature of Quebec. Ouimet v. Bazin, xlvi., 502. 97. Election law — Nomination— Irregu- larities — Omission of additions — -Identifiea- tion of candidate— 'Technical objections — Receipt for deposit — Validating effect — Evi- dence — Construction of statute — R. S. 0., 190S, 0. 6, "Dominion Elections Act" — R. 8. C, 1906, c. 7, "Dominion Controverted Elections Act."'] — Per Pitzpatrick, C.J. and Davies, Anglin and Brodeur, JJ._ »— Technical objections to the form of nomina- tion papers filed with the returning officer at an election of a member of the House of Commons, under the provisions of the "bominion Elections Act," R. S. C, 1906, c. 6, should not be permitted to defeat the manifest purpose of the statute. The omis- sion in nomination papers to mention the residence, addition or description of the candidate proposed in such a manner as sufficiently to identify him constitutes a pa- tent and substantial failure to comply with the essential requirements of s. 94 of the Act ; on the objection in this respect taken by the only opposing candidate it is the duty of the returning officer to reject a nomination so irregularly made and to de- clare such opposing candidate elected by ac- clamation. Such rejection and declaration of election by acclamation may properly be made by the returning officer after the ex- piration of the time limited for the nomina- tion of candidates by section 100 of the Act. — Per Fitzpatrick, C.J. and Davies, Anglin and Brodeur, J J. ( Idington and Duff, JJ., contra) . — The receipt for the required deposit of $200, accompanying the nomina- tion papers, given by the returning officer under the provisions of s. 97 of the "Do- minion Elections Act," is evidence merely of the production of the papers and pay- ment of the deposit and not of the validity of the nomination.^ — Per Idington and DufE, JJ. (dissenting). — ^The receipt so given for the required deposit constitutes a legal as- surance that the candidate has been duly and properly nominated ; it cannot be re- voked nor the, nomination papers rejected by the returning officer after the expiration of the time limited by s. 100 of the Act for the nomination of candidates ; when that time has passed all questions touching the statutory sufficiency of the papers are concluded in so far as it is within .the province of the returning officer to deal with such matters. — Per Duff, J. (dissent- ing) . — Where the returning officer has re- ceived papers professing to nominate a pro- posed candidate with the consent of the candidate to such nomination and given his receipt for the required deposit pursuant to s. 97 of the Act, and the time limited for the nomluatlon of candidates at the elec- tion has expired, the status of such candi- date becomes finally determined quoad pro- ceedings under the control of the returning officer, and it is then the duty of that official to grant a poll for taking the votes of the electors. — Per DufE, J. (dissenting). — Tn view of the limited jurisdiction conferred upon judges in respect to election trials under the "Dominion Controverted Elections Act," R. S. C, 1906, c. 7, where the returning officer has exceeded his legal powers by improperly returning a candidate as having been elected by acclamation the judgment should declare that the election was not ac- cording to law. -— The judgment appealed from (Q. iR. 42 S. C. 235), was affirmed, Idington and DufE, JJ., dissenting. Two Mountains Election, xlvli., 185. 98. Election law — Appeal — Preliminary objections- — Interlocutory motions — Con- struction of statute — "Dominion Contro- verted Elections Act," R, S. C., 1906, c. 7, s. 64-] — Several of the preliminary objec- tions to a petition against the election of a member of the House of Commons of Canada having remained undisposed of, on the day Ijefore the expiration of the six months limited for the commencement of the trial by s. 39 of the "Dominion Con- troverted Elections Act," R. S. C, 1906, e. 7, the petitioner applied to a judge, by mo- tions, (o) to obtain an enlargement of the time for the commencement of the trial, and, (5) to have a day fixed for the hear- ing on such preliminary objections. On appeal from the judgment dismissing the motions.— HeM, that the judgment in ques- tion was not appealable to the Supreme Court of Canada under the provisions of s. 64 of the "Dominion Controverted Elec- tions Act." L'Assomption Election Case (14 Can. S. C. R. 429) ; King's County Elec- tion Caie (8 Can. S. C. R. 192) ; Gloucester Election Case (8 Can. S. C. R. 204), and Halifax Election Case (39 Can. S. O. R. 401), referred to. Temiscouata Election, xlvil., 211. 99. Habeas corpus — "Supreme Court Act," s. 39(c) — 'Criminal charge — Prosecution under Provincial Act — Application for writ ■ — Judge's order.] — ^By s. 39(e), of the "Su- preme Court Act" an appeal Is given from the judgment in any case of proceedings for or upon a writ of habeas corpus . . . not arising out of a criminal charge. — Beld, per Fitzpatrick, C.J. and Davies and Anglin, JJ., that a trial and conviction for keeping liquor for sale contrary to the provisions of the "Nova Scotia Temperance Act" are proceedings on a criminal charge, and no appeal lies to the Supreme Court of Can- ada from the refusal of a writ of habeas corpus to discharge the accused from im- prisonment on such conviction. DufE, J., contra. Brodeur, J., hesitante. — By the "Liberty of the Subject Act" of Nova Scotia on an application to the court or a judge for a writ of halieas corpus an order may be made callmg on the keeper of the gaol or prison to return to the court or judge whether or not the i)erson named is detained therein, with the day and cause of his detention. On the return of an order so made, an application for the discharge of the prisoner was refused, and an appeal from this refusal was dismissed by the full court. — Held, per Idington and Brodeur, JJ., that such order is not a proceeding for or upon a writ of habeas corpus from which an appeal lies under said s. 39(c). — Per DufE, J.^That the judgment of the full court was given in a case of proceedings for a writ of habeas corpus within the meaning of s. 1133 STATUTE. 1134 39(c), and that the proceedings did not arise out of a "criminal charge" within the meaning of that provision ; but that, on the merits, the appeal ought to be dismissed. In re McNutt, xlvii., 259. 100. Constrtwiion of statute — "Quebeo Puhlio Health Aet" — R. 8. Q., 1909, art. S9IS — Ihspedion of food — Duty of health ojficerg — Qvialiiy of food — Condemnation — Satire — Notice — Effect of action ly health officerg — Controlling power of courts — -Evi- dence — Injunction — Appeal — Jurisdiction — Question in controversy.] — Per Fitzpatrick, C.J. — ^In the Province of Quebec, in order to constitute a valid seizure of movable property there must be something done by competent authority which has the effect of dispossessing the person proceeded against of the property ; notice thereof must be given ; an inventory made and a guardian appointed. Where these formalities have not been observed there can be no valid seizure. Brook v. Booker (41 Can. S. C. R. 331), referred to. — Per Fitzpatrick, C.J. — Extraordinary powers, conferred by statute, authorizing interference with private pro- perty tnust be exercised in such a manner that the rights of the owners may not be disregarded. Bonanza Greek Hydraulic Con- cession V. The King (40 Can. .S. C. U. 281) , and Riopelle v. City of Montreal (44 Can. S. C. R. 579), referred to. — Per Fitzpat- rick, C.J. and Davies and Idington, JJ. — The authority conferred upon health officers by the "Quebec Public Health Act" respect- ing the condemnation, seizure and disposal of food, as being deleterious to the public health, is not final and conclusive in its' effect, but it is to be exercised subject to the superintending power, orders and control of the Superior Court and the judges thereof. — Per Anglin and Brodeur. JJ. — The pro- tection afforded by the Quebec "Public Health Act" to an executive officer of a local board of health cannot be invoked when the officer has apparently not acted under its provisions, but has condemned food, not as the result of his own Inde- pendent judgment upon its quality, but In carrying out instructions given him Ijy municipal officials purporting to act under other statutory provisions. — In the result the finding of the trial judge that the food in question was fit for human consumption (Q. R. 39 S. C. 520), being supported by evidence, was not disturbed, and the effect of the judgment appealed from (1 D. L. R. 160), was affirmed with a variation of the order making absolute the Injunction against the defendant interfering therewith. City of Montreal v. Layton & Co., xlvli., 514. 101. Statute — Construction — Operation of railway — Right-of-way — Conibustible mater- ials— R. S. N. 8. \1900] c. 91. s. 9.]— Chapter 91, s. 9. of the Revised Statutes of Nova Scotia, 1900, provides that "when railways pass through woods the railway company shall clean from off the • sides of the roadway the combustible material by careful burning at a safe time or otherwise." — HeU, that this provision Is imperative and obliges the company at all times to keep its right-of-way so clear of combustible ma- terial that it will not be a source of danger from fire. Clearing it at certain periods only is not a compliance with such pro- vision. — ^Duff, J., dissented on the ground that it was not proved that the fire in this case originated on the right-of-way. — Judg- ment appealed from (46 N. S. Rep. 20) affirmed. Halifax and South Western Ry. V. Schwartz, xlvii., 590. 102. Railway company — Negligence — Contravention of statute — Protection of em- ployees — Foreign car — Defective equipment —R. 8. C. [1906] c. 37, s. 264, «»• He).] — The provisions of s. 264, s.-s. 1(c) of The Railway Act which require every rail- way company "to provide and cause to be used on all trains modern and efficient ap- paratus" for coupling and uncoupling cars without the necessity of going between them is contravened by the use of a foreign car not provided with such "modern and effi- cient apparatus" in a train operated by a Canadian company, and the company using such car is responsible for any injury caused by the want of such equipment. A lever for opening and closing the knuckle of the coupler which is too short to be operated from the side ladder with safety is not "modern and efficient apparatus" under the above provision. — -Where a brake- man on a ear approaching another with which it was to be coupled saw that the knuckle of the coupler of the ear he was on had to be opened and had only fifteen seconds in which to do It, being unable to signal the engineer to stop, took the only course open to him, which was a common one, and was injured, he was not guilty of contributory negligence. — Fitzpatrick, C.J., dissented, on the ground that the plaintiff's negligence was the sole cause of the acci- dent. — Judgment of the Court of Appeal (26 Ont. L. R. 121) , reversed. Fitzpatrick, C.J., dissenting. Stone v. Canadian Pacific Rail- way Co., xlvii., 634. 103. Master and servant — Profit-sharing — Partnership — Evidence — R. 8. B. C. 1911, c. 153, s. 3; 0. 175, s. 4 — Words and phrases — "Partnership."] — The "Master and Ser- vant Act," R. S. B. C. 1911, c. 153, by s. 3, respecting profit-sharing by servants, de- clares that no agreement of that nature shall create any relationship in the nature of partnership. Section 4 of the "Partner- ship Aet," IR. S. B. C. 1911, c. 175, pro- vides rules for determining partnership and. by s.-s. 2 and 3, declares that the sharing of gross profits does not, of itself, create a partnership, that the receipt of a share of the profits of a business is primd facie evi- dence of a partnership, that the receipt of such share or of a payment varying with the profits does not, of itself, make the per- son receiving the same. a partner, and that a contract to remunerate a servant by a share of the profits does not, of itself, make him a partner. The plaintiff, an employee of the defendant, by the terms of his en- gagement was to receive as remuneration for bis services a one-half share of the profits of defendant's business and conversations took place regarding an arrangement where- by plaintiff might have a "share in the busi- ness," but no definite agreement was made. Plaintiff, claiming to have become a partner, wrote a letter to defendant asserting that he had an undivided interest in the business and asking him to execute articles of part- nership. Defendant replied to this letter In 1135 STATUTE. 1136 an evasive and temporizing manner and the business continued to be conducted with- out any change. Later on, the defendant served upon the plaintiff a notice of dissolu- tion of partnership and, in the notice as well as in the correspondence, made use of the word "partnership" in referring to the relations between them. — Meld, reversing the judgment appealed from (18 B. C. Rep. 230) that, under the statutes referred to, the onus was upon the plaintiff to shew that h« had been admitted as a partner in the business in the strict legal sense and that the indefinite use of the term "partnership" in the correspondence and notice did not, in the circumstances, amount to evidence of an agreement that there should be a part- nership. Donkin v. Disher, xlix., 60. 104. Appeal — Ifew right of appeal — Ap- plication to pending actions.'] — An Act of Parliament enlarging the right of appeal to the Supreme Court of Canada does not apply to a case in which the action was instituted before the Act came into force. WilUams v. Irvine (22 Can. S. C. R. 108) ; Eyde v. Lindsay (29 Can. S. C. R. 99) and Colonial Sugar Refining Co. v. Irving ([1905] A. C. 369), followed. Doran v. Jewell, xlix., 88. 105. "Militia Acf'—R. S. G. [18961 c. Jfl — "Senior officer . . . present at any lo- cality" — Military district — Right of action — J^ Edw. VII. c. 23, s. 86 — Retrospective ef- fect.]— Bj s. 16 of the "Militia Act" (R. S. C. [1896] c. 41), Canada is divided into military districts of which the Province of Nova Scotia is one. By s. 34 "the senior officer present at any locality" may, on re- quisition from three justices of the peace, call out the troops in aid of the civil power wherever a riot or disturbance of the peace has occurred or is anticipated. — Held, Brodeur, J., dissenting, that the "senior ofiicer present at any locality" is not neces- sarily the senior officer of- a corps stationed at the place where the riot occurs or is likely to occur. The justices, in their dis- cretion, may requisition the senior officer of any available force. — ^By s. 34, s.-s. 6, of the above Act the officer commanding the troops so called out may, in his own name, take action against the municipality in which the riot occurred to recover the amount of the expenses thereby incurred which are to be paid to His Majesty when recovered. By 4 Edw. VII. c. 23, s. 86, this right of action was vested in His Majesty. — Held, that the latter being_ a proceilure Act is retrospective and an action was properly brought in the name of the Attorney-General of Canada to recover the e.-cpenses of calling out the troops on the occasion of an industrial strike in the City of Sydney, part of which expenses were in- curred before, and part after, the last n)en- tioned Act came into force. — Judgment ap- pealed from (46 N. S. Rep. 527) , reversed. Brodeur, J., dissenting. Attorney-General of Canada v. City of Sydney, xlix., 148. 106. Appeal — Jurisdiction — "Matter in controversy" — Annuity — Queiec "Work- men's Compensation Act," R. S. Q., 1909, arts. 7321 et seq.—9 Edw. VII. c. 66— "Su- preme Court Act," R. S. C, 1906, c. 139, s. J/i6(e) — Construction of statute.] — Plain- tiff's action, under the Quebec "Workmen's Compensation Act," claimed $450 for loss oit earnings, for six months, during inca- pacity occasioned by personal injuries, and also an annuity of $337 per annum. The plaintiff recovered judgment for the specific amount claimed and lie was also awarded an annuity of $247.50, which might be subject to revision, under the statute. The cap- italized value of the annuity would, prob- ably, amount to a sum exceeding $2,000, the appealable limitation fited by s. 46(c) of tlie "Supreme Court Act," R. S. C, 1906, -c. 139. — Held, Davies, J., dissenting, that, in the circumstances of the case, it did not appear that the demande amounted to the sum or value of two thousand dollars, within the meaning of s. 46 (c) of the "Supreme Court Act," and, consequently, the court had no jurisdiction to entertain the appeal. Tallot V. Guilmartin (30 Can. S. C. R. 482) ; La Gie, d'Agueduc de la Jeune Lor- ette V. Verrett (42 Can. S. C. R. 156) ; Lapointe v. The Montreal Police Benevolent and Pension Society (35 Can. S'. C. R. 5), and Macdonald v. Galiifan (28 Can. S. C. R. 258), referred to. (Leave to appeal to Privy Council granted, 15th July, 1914.) Canadian Pacific Ry. Co. v. McDonald, xlix., 163. 107. Sale of lands — Agreement for re-sale — Novation — Rescission — Specific perform- ance — Defence to action — Practice — Evi- dence — Principal and agent.] — ^In a suit for specific performance of a contract for the 'sale of lands an agreement for the re-sale of the lands may be set up as a defence notwithstanding that such re^sale agreement does not satisfy the requirements of the 4th section of the Statute of Frauds. Judg- ment appealed from (10 D. L. R. 765), affirmed. — ^Such an agreement for resale af- fords a sufficient reason for refusing a de- cree for specific performance of the original contract for sale. Frith v. Alliance Invest- ment Co., xlix., 384. And see Specific Peefoemance. 108. Banks and hanking — Loans — Security — Wholesale purchaser — "Products of the forest"— "Bank Act," s. S8.]— By s. 88(1) of the "Bank Act" a bank "may lend money to any wholesale purchaser ... or dealer in products of agriculture, the forest, etc. ; or to any wholesale purchaser . . . of live stock or dead stock and the products thereof, upon the security of such products or of such live stock or dead stock and the products thereof" — Held, affirming the judgment of the Appellate Division (28 Ont. L. R. 521), which affirmed the de- cision of a Divisional Court (27 Ont. L. R. 479), by which the -judgment of the trial judge (26 Ont. L. iR. 291), was maintained, that a person who purchases lumber by the carload having on band at times 200,000 or 300,000 feet and sells it by retail or uses it in his business is a "wholesale pur- chaser" within the meaning of the above provision. — Held, also, that sawn lumber is a "product of the forest" on which money can be lent under said provisions. Molsons Bank v. Beaudry (Q. R.ll K. B. 212) , over' ruled. — Held, per Duff and Anglin, J J. — The words "and the products thereof" at the end of the above sub-section mean the pro- 11&7 STATUTE. 1138 ducts of live or dead stock and not of the other articles mentioned. Townsend v. Northern Grown Bunk, xlix., 394. 109. Constitutional law — Criminal law — Xegislation respecting Orientals — Chinese Places of business — -Employment of white females — 2 Geo. V. c. 11 (Sask.) — "B. N. A. Act, 1867," ss. 91, 92 — Local and private matters — Property and civil rights — Naturalized British subject — Conviction under provincial statute.] — ^The provisions of the statute of the Province of Saskatche- wan, 2 Geo. V. e. 17, containing a pro- hibition against the employment of white female labour in places of business and amusement kept or managed by Chinamen, sanctioned by fine and imprisonment, is intra vires of the Provincial Legislature. Union Colliery Co. v. Bryden ([1899] A. C. 580), and Cunningham v. Tomey Homma ([1903] A. C. 151), referred to.— Per Duff, J. — ^The imposition of penalties for the pur- pose of enforcing the provisions of a pro- vincial statute does not, in itself, amount to legislation on the subject-matter of crim- inal law within the meaning of item 27 of the 91st section of the "British North America Act, 1867." Hodge v. The Queen (9 App. Gas. 117), The Attorney-General of Ontario v. The Attorney-General for the Dominion ([1896] A. C. 348), and The Attorney-General of Manitoba v. The Mani- toba License Holders' Association ( [1902] A. C. 73), referred to. — The judgment ap- pealed from (4 West. W. R. 1135), was aiiirmed, Idington, J., dissenting. — (Leave to appeal to the Privy Council refused, 19th May, 1914.) Quong-Wing v. The King, xUx., 440. 110. Limitation of actions — General statu- tory provisions — Carriers — Private Act — B. C. Consolidated Railway Co.'s Act — R. S. B. C, 1911, c. 82— Lord CampbeWa Act—(B. C.) 59 Vict. c. 55, s. 60.]— Per Duff, J.— Section 60 of the "Consolidated Railway Company's Act," (B.C.), 59 Vict, c. 55, has no application to an action brought against the company for breach of duty as a carrier. Bayers v. British Col- umbia Electric Ry. Co. (12 B. C. Rep. 102), referred to. British Columbia Electric Ry. Co. V. Turner, xlix., 470. And see Pbaotice and Peocedttre. 111. Assessment and taxes — Lease of Crown la/nds — Interest of occupier — Con- stitutional law — Exemption from taxation — Construction of statute — "B.N.A. Act, 1867," s. 125— (Sask.) 6 Edw. VII. c. 36, "Local Im^ vrovement Act" — (Sask.) 7 Edw. VII. o. 3, "Supplementary Revenue Act" — Recovery of taxes — Non-resident — -Action for debt — Jur- isdiction of provincial courts.] — The Sas- katchewan statutes, 6 Edw. VII. c. 36 ("The Local Improvement Act") and 7 Edw. VII. c. 3 ("The Supplementary Eevenue Act"), and their amendments, authorizing the taxa- tion of interests in Dominion lands held by persons occupying them under grazing leases, or licenses from the Minister of the Interior, are not in contravention of the provision of s. 125 of the "British North America Act, 1867," exempting from taxation all lands or property belonging to the Dominion of Can- ada ; consequently, these enactments are intra vires of the provincial legislature. The Calgary and Edmonton Land Go v The Attorney-General of Alberta (45 Can. h. O. R. 170) , foUowed. For the purposes ot the collection of taxes so levied the provmcial legislature may authorize their recovery by personal action, as for debt, against persons so occupying such lands, in the civil courts of the province, notwith- standing that the residences of such per- sons may be outside the limits of the pro- vince. — The judgment appealed from (24 West. L. R. 903 ; 4 West. W. R. 1219), was alBrmed. Smith v. Rural Municipality of Vermilion Hills, xlix., 563. 112. Dedication of lands for highway — Opening of street — Construction of agree- ment,] — A land company made a donation of certain lots of land to the municipal cor- poration for the purpose of a highway and the corporation agreed to open and con- struct a portion of the , street when neces- sary. — Held, that, on the proper construc- tion of the agreement, in view of the powers conferred upon the corporation by s. 85 of its charter Que. ) , 56 Viet. c. 54, the word "neces- sary" in the agreement should be construed as meaning "necessary in the public or gen- eral interest" and not merely in the interest of the other party to the agreement. In re Morton and the City of St. Thomas (6 Ont. App. R. 323), and Pells v. Boswell (8 O. R. 680), referred to. Hutchison v. City of Westmount, xlix., 621. 113. "Colonial Courts of Admiralty Act, 1890," (Imp.) 53 & 5k Vict. c. 27—"PubUo Authorities Protection Act, 1892," (Imp.) 56 «i 57 Vict. c. 61 — Limitations of actions — Effect of statutes — Practice and procedure — Jurisdiction.] — The "Public Authorities Protection Act, 1893" (Imp.), 56 & 57 Vict. c. 61, does not apply to suits or ac- tions iustituted in the Exchequer Court of Canada in the exercise of its jurisdiction as a Colonial Court of Admiralty. Harbour Commissioners of Montreal v. Sydney, Gape Breton and Montreal S. 8. Co., xlix., 627., 114. Construction of — Sales of subdivided lands — Registration of plans — Prohibitive sanction — "Land Titles Act," 6 Edw. Vll. c. 21,, s.-s. 7 (Alta.); 4 Geo. V. c. 2, s. 9; 5 Geo. V. c. 2, s. 25 (Alta.) — Retrospective legislation — Illegality of contract — Rescis- sion — Recovery of money paid — Right of ac- tion — Practice — Pleading — Appeal.] — ^The effect of the amendment to the Alberta "Land Titles Act," 6 Edw. VII. c. 24, by 1 Geo. V. c. 4, s. 15(25), adding the seventh sub-section to s. 124 of that Act, is to pro- hibit sales of lands subdivided into lots ac- cording to plans of subdivision until after the registration of the plans in the proper land titles office and also to render any sales made in contravention of the prohibi- tion inoperative. — The vindicatory sanction imposed by the statute is directed against the vendor and where there is no presump- tion of knowledge of the invalidity on the part of the purchaser he cannot be deemed in pari delicto with the vendor and is not deprived of the right of action to set aside the agreement and recover back moneys paid thereunder. — ^After the judsment appealed from had been rendered the statute was further amended (5 Geo. V. c. 2. s. 25) by the addition of s.-s. 8(o) providing that 1130 STATUTE. 1140 tbe seventh sub-gcction could HQt be pleaded or mied upon in any civil action or pro- ceeding by a party to any such agreement when the plan in question had been regis- tered before the action or proceeding was in- stituted or where it was the duty of the party pleading to make such registration. — Mela, that, as the last amending Act was not a statute declaratory of the law as it stood at the time when the judgment ap- pealed from was rendered, and as appeals to the Supreme Court of Canada are not of the nature of re-hearings to which the principle of the decision in Quilter v. Mapl^ son (9 Q. B. D. 672), applies, the restrict- ing provisions can have no effect upon the decision of the present appeal. — Judgment appealed from (8 West. W. R. 440), af- firiped. Boulevard Heights, Limited V. Veilleux, lii., 185. 115. Collection of municipal taxes — Ac- tion in Recorder's Court — Montreal City Charter, 62 Vict. c. 58 (Que.) — Appeal — Jurisdiction — Judgment ty Court of Review — Special tribunal — Court of last resort — Supreme Court Act, R. S. C, 1906, c. 139, s. 41, 2£li.. 427. See Appeal. 116. Sale of goods by sample — Delivery — Condition f.o.b. — "Sale of Goods Act," R. S. M., 1902, s. 152 — Notice of rejection — Reasonable time — Breach of warranty, xli., 435. See Sale. 117. Ships and shipping — Perils of the sea — Unseaivorthy ship — Evidence — War- ranty — Inspection of shipping — Certiflgate of seaworthiness — Construction of statute — R. 8. C, 1906, c. lis, s. 342— Drowning of saiiors — Negligence of master — Liability of owner. Connolly v. Orenier, xlii., 242. See Ships and Shipping. 118. Action — Damages — Denial of tra-fflo facilities — Injury by reason of operation of railway — Limitation of actions — "Railway Act," 3 Edw. VII. c. 58, s. 242— Construc- tion of statute, xliii., 387. See Action. 119. Appeal — Jurisdiction — Prohibition — Quebec appeals — B. S. C, 1906, c. 139, ss. S9, 4S — Construction of statute, xliii., 82. See Appeal. 120. Railways — Construction of statute — R. S. O., 1906, c. 37, ss. 335, 3S6—Through traffic — Joint international tariffs — Filing by foreign company — Assent of domestic com- pany — Tariffs "duly filed"-— Jurisdiction of Board of Railway Commissioners, xliii., 311. See Railways. 121. Construction of statute — 7 d 8 Edw. VII. c. 31, s. 2 — Government railway — Fire from engine — Negligence — Damages, xliii., 164. See Railways. 122. Board of Railway Commissioners — Jurisdiction — Private siding — Construction of statute— "Raihcay Act," R. S. C. (1906) e. 37, ss. 222, 226, Sit—Branch of railway ■^-Rea inter alioft^Estoppel, xliv., 92. See Railways. 123. Appeal — Nature of action — Equitable relief — "Supreme Court Act," s. iSe — Ap- peof from referee — Final judgment — Assess- ment of damages, xliv; 284. See Appeal. i24. Appeal — Setting down for hearing — Form of submission — Defining questions of law, xliv., 328. See Appeal. 125. Criminal law — JViaZ for murder — Improper admission of evidence — Substan- tial wrong or miscarriage — Criminal Code, s. 1019, xliv., 331. See Ceiminal Law. 126. Irrigation works — Nuisance — 06- struction of highways — Duty to build and maintain bridges — Construction of statute — 61 V. V. 35. ss. 11, 16, 37 (D.), xliv., 505. See lERiGATiON Works. 127. Construction of statute — Fishery and game leases — Personal servitude — Pos- session — Use and occupation — Right of ac- tion — Action en complainte — Renewed leases — Priority — Watercourses — Works to facilitate lumbering operations — Dricing logs — Storage dams — Penning back waters out of track of transmission — Damages — Rights of lessees — Injury to preserves — In- junction — Demolition of works, xlv., 1. See Rivers and Streams. 128. Municipal corporation — Highways — Nuisance — Repair of sidewalks — Negli- gence — Statutory duty — Nonfeasance — Per- sonal injury — Civil liability — Right of ar- tion — Construction of statute — "Vancouver City Charter," xlv., 194. See Municipal Corporation. 129. Contract — Public policy-— Restraint of trade — Combination — Conspiracy — Con- struction of statute — "Criminal Code," c. 498 — Wor4s and phrases, "unduly" pre- venting competition, etc., xlvi., 1. See Contract. 130. Municipal corporation — Repair of highways — Statutory duty — "Unfenced trap" in sidewalk — Misfeasance — Actionable negli- gence — Notice — Knowledge — Personal in- juries — Liability of corporation — Evidence — Findings of jury — "Res ipsa loquitur," xlvi., 457. See Municipal Corporation. 131. Banking — "Bills of Exchange Act" — Promissory note — Special indorsement — Condition ■ — Pledge — Collateral security — Holder in due course — Payment and satis- faction — Liability on current account, xlvi., 564. See Banking. 132. Criminal law — Indictment for mur- der • — Trial ■ — Evidence — Criminal intent — Provocation — "Heat of passion" — Charge 1141 STATUTE OF ELIZABETH. 114^ to jurt — Mitiirection — Reducing charge to tnanslg.nghter — New trial — "Suhstantial Krt-ontf" — Crimintil Code, s«. 261, 1019 — Ap- peal—Questions to be reviexeed, xlvii., 1. ^^ee Cbiminax Law. 133. Construction of statute — "Railway Act," R. S. C, 1906, 0. 37, ss. 20, 318— Joint freight tariff — Power to supersede — Declaratory decree — Jurisdiction of Board of Railway Commissioneri, xlvii., 156. See Rahways. 134. Banking — Security for advances — Assignment — Chose in action — Moneys to arise out of contract — Unearned funds — Equitahle assignment to third party — No- tice — Evidence — Priority of claim — Estop- pel — Construction of statute — Manitoba "King's Bench Act" — "Bank Act," xlvii., 313. See Banking. 135. Sate of lands — Agreement to pay com- mission — Named price — Introduction by agent — General retainer — Sale at lower price — Right of action — Alberta statute, 6 Edw. YIl., c. 27, s. 1, xlix., 75. See Bbokke. 186. Municipal councillor — ■ Interest in municipal contract — Public policy — -Money received under prohibited contract ■ — • Re- covery of funds — Right of action — Construc- tion of statute — {Que.) 58 V. o. 42, ss. 1, 2, 11— Arts. 989, 1047 C. C, xlix., 271. See Municipal Coepobation. 137. Rivers and streams — Industrial im- provements — Penning back waters — Per- manent works — Damages — Measure of dam- ages — Expertise — Arbitration — Repara- tion — Loss of water-power — Future dam- ages — Compensation once for all — Right of actions-Practice— R. S. Q., 1909, arts. 7295, 7298, xlix, 344. See RiVEES and Stkeams. 138. Bill of sale — Mortgage — Registration — Affidavit — Verification — B. C. "Bills of Sale Act," 5 Edw. VII., c. 8, s. 7, xlix., 541. See Bills op Sale. . 139. Manitoba "Real Property Act," ss. 100, ISO — Agreement for mortgage — Caveat — "Interest in land" — Registration subject to incumbrance — Indorsem-ent on instru- ment registered. Yockney <& Thompson, 1., 1. See Registry Laws. 140. Company — Disqualification of direc- tors — Taking personal profit — Fraud — Ille- gal contract — Ratification — Right of action — Shareholder — Recourse by minority — Al- berta "Companies Ordinance." N.-W. Ter. Ord., No. 20 of 1901 — Construction of sta- tute. Theatre Amusement Co. v. Stone, I, 32. See CoMPANT. 141. Board of Railway Commissioners — Jurisdiction — Lands of provincial railway company — Undertaking for general advan- tage of Canada — Transfer of provincial rail- way — Construction of statute — "Railway Act," R. 8. C, 1906, c. 37, s. 176. Mont. Tram. Co. v. Lachine, 1., 84. See IR'ailwats. 142. "Railway Act" — Expropriation — Municipal plan — Severance of lots — Injuri- ous affection — Reference back to arbitrators —R. S. C, 1906, c. 37—{D.) 1 d 2 Geo. v., c. 22, s. 6. C. N. O. R. R. Co. v. Mol- ditch, 1., 265. See Aebitbation. 143. Assessment and taxation — Interest in land — Recitals in agreement — Validation by statute — Legislative declarations — Construc- tion of statute. Re Heinze, Fleitman, etc., lii., 15. See Assessment and Taxes. 144. Banking — Purchase of company's assets — Bill of sale — Description of chattels —B. C. "Bills of Sale Act," R. S. B. C. 1911, c. 20 — Registration — Recital in bill of sale — Consideration — Defeasance — Refer- ence to unregistered note — Collateral secu- rity — Loan by bank — "Bank Act," (D.) 3 & 4 Geo. v., e. 9, s. 76. Ball v. Royal Bank, lii., 254. See Bill op Sale. 145. Dominion lands — Lease of mining areas — "Dominion Lands Act," s. ^7 — Sta- tutory regulations — Conditions of lea^e — Defeasance — Notice — Cancellation on de- fault — Forfeiture of rights. Paulson v. The King, lii., 317. See Cbown LaNds. 146. Electric transmission — Statutory au- thority — Special Act — Negligence — Charac- ter of installations — System of operation — Grounding transformers — Defective fittings — Vis majot — Responsibility unthout fault —Art. 1054 C. C. Vandry v. Quebec R. R. & Light, etc., liii., 72. See Negligexce. 147. Construction — Application — Taxa- tion — Exemption — Railway property — Frontage lots — Local improvements, 63 & 64 V. c. 57, s. 18; c. 58, s. 22 (Man.) — R. S. M., 1902, c. 166; 10 Edu: Til., c. 7^ (Man.)., liv., 589. See Assessment and Taxes. STATUTE OF ANNE. Cause of action — Limitation of actions — Contract — Foreign judgment — Yukon Ordi- nance, c. 31 of 1890 — Statute of James — 4 £ 5 Anne. c. 16 — Lex fori — Lex loci con- tractus — Absence of debtor, xxxvii., 546. See Limitation op Actioxs. STATUTE OF ELIZABETH. Appeal — Jurisdiction — Title to land — Fraudulent conveyance, Batcman v. Scott, liii., 145. See Appeal. 1143 STATUTE 01" FRAUDS. 1114 STATUTE OF FRAUDS. 1. Statute of Frauds- — Pari performance — lHvidence.'] — M. leased land to his two sons, S. and W., of which fifty acres was to be in the sole tenancy of W. In an ac- tion by M. against S. for waste by cutting wood on said fifty acres the defence set up was that by parol agreement, in considera- tion ofS. conveying , one hundred acres of the land- to W. he was to have a deed of the fifty acres, and having so conveyed to W. he had an equitable title to the latter. JI. admitted the agreement but denied that the laud to be conveyed to S. was the said fifty acres. — Held, per Nesbitt and Iddngton, JJ., that the conveyance to W. was a part per- formance of the parol agreement and .the Statute of Frauds was no answer to this defence. — The majority of the court held that as the possession of the fifty acres was referable to the lease as well as to the parol agreement, part performance was riot proved, and aflirmed the judgment appealed from, in favour of the plaintiff (37 N. S. Rep. 23) on this and other grounds. Meis- ncr V. Meisner, xxxvi., 34. 2. Vendor and purchaser — Sale of land — Formation of contract — Conditions — Accept- ance of title — HeiD term — Statute of Frauds — Principal and agent — Secret com- mission — Avoidance of contract — Fraud — Specific performance.'} — While A. was ab- sent abroad, B. assumed, without authority, to sell certain of bis lands to 'C, and re- ceived, from C, a deposit on account of the price. On receipt of a cablegram from B., notifying him of what had been done, but without disclosing the name of the pro- posed purchaser, A. replied by letter, stat- ing that he was willing to sell at the price named, that he would not complete the deal until he returned home, that the sale would be subject to an existing lease of the prem- ises and that he would not furnish evidence of title other than the deeds that were In his possession, and requesting B. to com- municate these terms to the proposed pur- chaser. On learning the conditions, C, in a letter by his solicitors, accepted the terms and offered to pay the balance of the price as soon as the title was evidenced to their satisfaction. In a suit for specific perform- ance : — Held, that the correspondence which had taken place constituted a contract suffi- cient to satisfy the requirements of the Stat- ute of Frauds, that the words "so soon as title is evidenced to our satisfaction," in the solicitors' letter accepting the condi- tions, did not import the proposal of a new term and that A. was bound to specific per- forinance. — Held, also, that an arrangement, unknown to A. and made prior' to the re- ceipt of his letter, whereby B. was to. have a commission on the transaction from C, could not have the effect of avoiding the contract, as B. was not, at that time, the agent of A. for the sale of the property. — Judgment appealed from (12 B. C. Rep. 236), affirmed. Andrews v. Oalori, xxxviii., 588. 3. Location of mineral claims — Construc- tion of contract — Fictitious signature — TJn- avthorized use of a firm name — Transfer hy hare trustee — Statute of Frauds — U. S. B. C. (1891), c. 135, ss. 50, iSM— Whei-e B., acting as principal and for himself only, signed a document containing the following provision: "We hereby agree to give F. one-half (%) , non-assessable interest in the following claims" (describing three located .mineral claims), in the namp of "J.. B. & Sons," without authority from , the locatees .of two of the claims which had been staked in the names of other persons, without their knowledge or consent -.—Held, affirming, the judgment appealed from (13 B. O. Rep. 20) that, although no such firm existed and notwithstanding that two of the claims had ■fcieen located in the names of the other per- "sons, who, while disclaiming any interest therein, had afterwards transferred them to "B., the latter was personally bound by the 'agreement in respect to all three claims, and F. was entitled to the half interest therein. — A subsequent agreement for the reduction of the interest of F. from one-half to one- fifth, which had been drawn up in writing, but was not signed by F., was held void under the Statute of Frauds. MoMeekin v. Furry, xxxix., 378. 4. Title to land — Trust — Interest in mint- ing areas — Sale by trustee — Recovery of proceeds of sale — Agreement in writing — Statute of Frauds— B. 8. N. S. (1900), c. HI, ss. i and 7 — Part performance — Acts referable to contract — Evidence — Pleading.] — M. transferred to C. a portion of an in- terest in mining areas which he claimed wai held in trust for him by the defendant. In an action by C. claiming a share in the pro- ceeds of the sale thereof, no deed or note in writing of the assignment was produced as required by the fourth section of the Nova Scotia Statute of Frauds, and there was no evidence that, prior to the assignment, there had been such a conversion of the in- terest as would take away its character as real estate. — Held, that the subject of the alleged assignment was an interest in lands within the meaning of the Statute of Frauds and not merely an interest in the proceeds of the sale as distinguished from an interest in the areas themselves, and, consequently, that the plaintiff could not recover on ac- count of failure to comply with that statute. — .It was shewn that, on settling with in- terested parties, the defendant had given M. a bond for $5(X), as his share of what he had received on the sale of the areas.— Held, that, as this act was not unequi- vocally and in its own nature referable to some dealing with the mining areas alleged to have been the subject of the agreement, it could not have the effect of taking the case out of the operation of the Statute of Frauds. Maddison v. Alderson (8 App. Cas. 467), referred to. — Judgment appealed from (41 N. S. Rep. 110), reversed. Mol^etl V. Corbett, xxxix., 608. 5. Debtor and creditor — Surety — Ad- vances to company — Third party's promise to repay.] — ^B., a director of a mining cbm- pany, advanced money for the company S purposes, which G., the president and largest shareholder, orally agreed to repay. — Held, affirming the decision of the Appellate Divi- sion (35 Ont. L. R. 218), which reversed the judgment for the defendant at the trial (34 Ont. li. R. 210), Fitzpatrick,_ C.J,, and Idington, J., dissenting, that this was 1145 STOCK. lUC not a promise to pay a debt of the company ^nd void as a contract by virtue of the fourth section of the Statute of Frauds ; that G. was a primary debtor for the mon- ies advanced by B. and liable to the latter for their re-payment. Oillies v. Brown, liii., 557. 6. Contract — Purchase of Tjonds — Memor- andum in writing — Correspondence — Rela- tion of documents— Parol evidenoe.'i — In an action against D., claiming damages for breach of a contract to purchase bonds, a telegram from D. to his partner was pro- duced, saying, "I absolutely bought them yesterday after our 'phone conversation, they agreeing to our terms." — Held, that parol evidence was properly received to shew that terms had heen stated by D., over his signa- ture, that they were the only terms, and were those referred to in the telegram and the two constituted a sufficient memoran- dum within the Statute of Frauds. Ridge- way v. Wharton (6 H. L. Oas. 238) and Baumann v. James (3 Ch. App. 508), fol- lowed. Duff, J., dissented. — ^Judgment of the AppeUate Division (35 Ont. L. B. 349), affirming that at the trial (34 Ont. L. K. 403), affirmed. Doran v. McKinnon, liii.. 7. Statute of Frauds — Contract — Resolu- tion by municipal corporation — Acceptance of olfer to purchase — Evidence — Written in- struments — Estoppel, xxxiv., 132. See Contract. 8. Statute of Frauds — Sale of goods — Con- tract by correspondence — Delivery — Prin- cipal and agent — Statutory prohibition — Illicit sale of intoxicating liquors — Know- ledge of seller — Validity of contract, xxxvii., 55. See CONTEAOT. 9. Assignment — Insolvency — Preference —Trust, xlvii., 392. See Assignment. 10. Contract — Settlement of action — Debt of another. MacBwan v. Toronto Gen. Trusts Corp., liv., 381. See CONTKACT. STATUTE OF JAMES. Cause of action — Limitation of actions — Contract — Foreign judgment — Yukon Ord- inance, c. SI of 1890 — 21 Jac. I. c. 16 — Statute of Anne — Leso fori — Leie loci con- tractus — Absence of debtor, xxxvii., 546. See Limitations of Actions. STATUTE OF LIMITATIONS. 1. Account — Statute of Limitations — Agents or partners— Reference.] — By agree- ment between them the Hamilton Brass Mfg. Co. was appointed agent of the Barr Cash Co. for sale and lease of its carriers in Canada at a price named for manufacture ; net profits to be equally divided and quar- terly returns to be furnished, either party having liberty to annul the contract for non- fulfilment of conditions. The agreement was in force for three years when the Barr Co. sued for an account, alleging failure to make proper returns and payments. — Held, revers- ing the judgment of the Court of Appeal, Girouard and Davies, JJ., dissenting, that the accounts should be taken for the six years preceding the action only. — On a ref- erence to the master the taking of the ac- counts was brought down to a time at which defendants claimed that the contract was terminated by notice. The Court of Ap- peal ordered that they should be taken down to the date of the master's report. — Held, that this was a matter of practice and pro- cedure as to which the iSupreme Court would not entertain an appeal. Hamilton Brass Manufacturing Co. v. Barr Gash and Pack- age Carrier Co., xxxviii., 216. 2. Statute of Limitations — Crown lands — ■ Adverse possession — Chant during — In- formation for intrusion — 21 Jac. I. v. H (Imp.), xxxiv., 533. See Ckown Lands. 3. Possession of part of lands — Colourable title — Evidence, xxxiv., 627. See Title to Land. 4. Statute of Limitations — Possession of land — Constructive possession — Colourable title — Effect of sherif's sale, xxxvii., 157. See Title to Land. 5. Breach of trust — Accounts — Evidence — Nova Scotia "Trusts Act" — 2 Edw. VII. c. 13 — Liability of trustee — N. S. , Order XXXII., r. 3 — Judicial discretion, xxxvii., 163. See Teusts. 6. Title to land — Room in building — Ad- verse possession — Incidental rights — Im- plied grant — License or easement, xl., 315. See Title to Land. And see Limitations of Actions. STIPENDIARY MAGISTRATE. Courts of General Sessions of the Peace- Criminal law — Jurisdiction of magistrate — Criminal Code, s. 785— OonstiiwtJonoJ iaw — Constitution of criminal courts, xxxiv., 621. See Cbiminal Law. STOCK. 1. Broker — Purchase on margin — Pledge of stock by broker — Possession for delivery to purchaser, xxxviii., 601. See Beokek. And see Company ; Shaeeholdeb. 2. Evidence — Burden of proof — Shifting of onus — Sale of bank stock- — Allotment to shareholders — Shares refused or relinquished — Sale to public — Authority — R. S. C. (1906) c. 29, s. Si, xliv., 157. See Shaeeholdeb. 1147 SUBSTITUTION. 1148 STREAMS. See EiVEBS and Streams. STREET RAILWAY. Franchise — Assumption iy municipality — Principte of valuation — Operation in two munictpalities — Compulsory taking — R. S. O. [18911 c. 30S.]— By s. 41 of the "On- tario Street Railway Act" (R. S. O. [1897] c. 208), no municipal council shall grant to a street railway company any privilege thereunder for a longer period than twenty years, and at the expiration of a franchise so granted, or earlier if so agreed upon, it may, on giving six months' previous notice to the company, assume the ownership of the railway and all real and personal property in connection with the working thereof on payment of the value of the same to be de- termined by arbitration. — Held, reversing the judgment of the Court of Appeal (19 Ont. L. R. 57), that the proper mode of estimating the value of the "railway and all real and personal property in connection with the working thereof," was not by capitalizing its net permanent revenue and taking that as the value, but by estimating what it was worth as a railway in use and capable of being operated excluding compen- sation for loss of franchise. — Meld, also, that in view of the provisions in the "Street Railway Act" authorizing the municipality to assume ownership of a street railway operating in two or more municipalities the company in this case whose railway was taken over by the Town of Rerlin was not entitled to compensation fox loss of its fran^ chise in the municipality of Waterloo. — On the expiration of its franchise the company executed an agreement extending for two months the time for assumption of owner- ship by the municipality, but did not re- linquish possession until six months more bad elapsed. During the extended time an Act was passed by the legislature reciting all the circumstances, ratifying and confirm- ing the agreement for extension and author- izing the municipality to take possession on payment of the award subject to any varia- tion in the amount by the court. — Held, that though this Act did not expressly provide for taking nossession on the same footing as if it had been done immediately on the expiration of the franchise its effect was. Hot to confer on the municipality a new right of expropriation in respect of an ex- tended franchise, but merely to extend the time for assumption of ownership under the original conditions. — The rights of the com- pany to compensation are defined by statute, and there is no provision for an allowance of ten per cent, over and above the actual value of the property. Berlin v. Berlin and Waterloo Street By. Co., xlli., 581. See Railwat. — Fire insurance premiums — Arts. 311, SIS, 419, 1043-1048, IWl, 1994, 1996, 2001, 2009 C. C, xxxix., 318. See Company. 2. Fire insurance — Insurance hy mortga- gee — Interest insured — Payment to mort- gagee — Subrogation, Oam. Oas. 1. See Insubancb, FraE. 3. Winding-up proceedings — Company in liquidation — Sale of assets — Consent to sate, of mortgaged ship — Sale by order of court — Mariners' liens — Sale free from incum- brances — Special fund — Privileged charge — Priority — Valuation of security — Release of mortgage — Marshalling securities. Traders Bank of Can. v. Lockwood, xlviii., 593. See Lien. SUBSIDIES. 1. Aid to railway — Construction of statute — 3 Edw. VII. c. 57 — Mode of estimating cost of construction of line — Rolling stock and equipment, xxxviii'., 137. See Railways. 2. Railway aid — Provincial subsidy — Con- strtiction of statute — 60 Viot. c. 4, *■ 12 (Que.)— 54 Viet. c. 8^_, s. lU), {Qve.)— Breach of condition-^ omipromise by Grown officers — Obligation binding on the Crown — Right of action — Application of subsidy to extension of line of railway, xxxix., 682. See Railways. SUBROGATIOX. 1. Liquidation of insolvent corporation — Distribution and collocation — Privileged claim — Expenses for preservation of estate SUBSTITUTION. 1. Right of appeal — Interest of appellant — Parties to action — Art. 77 C. P. Q. — Sale of substituted lands — Will— Prohibition against alienation — Arts. 252, 85Sa, 968 et seq. C. C. — Res judicata.] — Where a person who might have an eventual interest in substituted lands has not been called to the family council nor made a party in the Superior Court on proceedings for auth- ority to sell the lands, the order authorizing the sale is, as to him, res inter alios acta, does not prejudice his rights and, therefore, he cannot maintain an appeal therefrom. Provost V. Provost, xxxv., 193. 2. Construction of will — Usufruct — Sub- stitution — Partition between institutes — Validating legislation— 60 Vict. c. 95 (Q.) — Construction of statute — Restraint of alienor tion — Interest of substitutes — Devise of pro- perty held by institute under partition — Devolution of corpus of estate en nature — Accretion — Res judicata — Arts. 868, 948 C. C] — The effect of the statute, 60 Vict. c. 95 (Que.), respecting the will of the late Amable Prfivost, read in conjunction with the provisions of the will and codicils therein referred to, is to declare the deed of parti- tion between the beneficiaries thereunder final and definitive and not merely pro- visional ; the judgment of the Court of Queen's Bench, on the appeal side, taken under that statute, has no other effect. Neither the statute nor the judgment re- ferred to sanations the view that the said 1149 SUBSTITUTION. 1150 will and eodioils constitute more than one avibstitutlon ; there was but one substitution created thereunder in favour of all the joint legatees and, consequently, accretion takes place among them within the meaning of article 868 of the Civil Code, in the event of any legacy lapsing, under the terms of the wiU, upon the death of an institute without iasne prior to the opening of the substitution. In such case, the share of the institute dying without issue devolves to the other Joint legatees, as well in usufruct as in absolute ownership, and, consequently, none of the institutes or substitutes have the right of disposing of any portion of the testator's estate, by will or otherwise, prior to the date of the opening of the substitution. — ^Judg- ment appealed from (Q. R. 28 S. C. 257), reversed. DeHertel v. Goddard (66 L. J. P. C. 90), distinguished. — (Reversed by Privy Council ([1908] A. C. 541.) Pr4- vost V. Lamarohe, xxxviii., 1. 3. WiU — Universal legacy — Powers vested in legatee — Devise by legatee of residue un- disposed of at her death — Words and phrases — "Or not disposed of" — In her possession.] — S., by his will, gave all his property ab- solutely to his wife with a direction that their children should be suitably maintained and educated by her. The will then pro- vided "that should my said wife die leaving any of my said property or rights, in her possession or not disposed of," upon her said decease the same should be divided '.'among our said children" in the manner specified. — Meld, affirming the judgment of the Court of Review (Q. IR. 40 S. 0. 139, sub nom. Shearer v. Forman), that this provision did not empower the wife to dis- pose of the residue at the time of her death by will, but had the effect of creating a substitution de residue in favour of the children. Shearer v. Hogg, xlvi., 492. 4. Construction of will — Trust — Death of grev4 — Accretion — Partition • — Apportion- ment in aliquot shares — Distribution of estate — Partial intestacy — Devolution.] — By his will, in 1845, M. devised his estate to trustees charging tbem with its adminis- tration in a manner intended to secure the enjoyment of the revenues by his surviving children and their descendants so long as the law would permit ; he provided for the division of his estate into as many equal parts as he should leave children him sur- viving : "pour chacune de ccs parts ou portions de mes biens representer les Mens moblliers et immobiliers dont chacun de mes dits enfants aura seulement la moitifi des revenus sa vie durante, ainsi que ci- aprfes pourvu, et pour les revenus de cha- cune de ces parts ou portions de mes biens ftre rgversibles aprfes le dficfts de chacun de mes dits enfants aux enfants nfe en legitimes mariages d'eux, mes dits enfants, respec- tivement, et 6tre substitug de descendants en descendants, et ce indgfiniment, ou autant que permis par la loi, en observant que je veux et entends que lors d^ chaque suc- cession ou transmission de mes biens il en soit fait partage, autant que possible, entre chacun de mes descendants de maniftre ft pouvoir connaltre et distinguer la part ou portion des biens dont chacun d'eux aura les revenus sa vie durante." — ^At the time of bis death, in 1847, eight of his children survived the testator and his estate was, accordingly, apportioned so far as then pos- sible, the residue, not then conveniently divisible, being held in suspense as a ninth share to be subsequently divided from time to time as it became possible to do so. Of the eight shares, that attributable to L. M., one of the children, was enjoyed by him up to the time of his death, in 1887, intestate as to the share in question and without issue. — Held, Brodeur, J., dissenting. — That, as the will did not give the children and grandchildren of the testator any rights as proprietors in his estate, there was no sub- stitution created by its provisions. — Held, also, Davies and Brodeur, JJ., dissenting. — That, on the death of L. M. without issue, the share allotted to him remained vested in the trustees subject to distribution among the children of the testator and their de- scendants in the same manner and upon the sfirae conditions as if L. M. had pre-deceased the testator and the estate had been origin- ally apportioned into seven instead of into eight parts. — Per Davies, J. — As there was no provision' in the will in respect to chil- dren dying without issue, and as there was no collateral substitution, there was in- testacy resulting, on the death of L. M. without issue, in regard to the share allotted to him ; consequently, it remained vested in the trustees for the benefit of and to be distributed amongst the heirs of the testator living at that date. — Per Brodeur, X, dis- senting. — The wiU had the effect of creat- ing a direct and collateral substitution. At the death of L. M. bis brothers and sisters became substitutes and their descendants are appeUs. — Judgment appealed from (Q. R. 20 K. B. 1), reversed. Masson v. Mas- son, xlvii., 42. 5. Registration — Sheriff's sale — Right of institute — Effect of sale under execution — Arts. 938-941, 950, 953, 2090, 2091 O. C— Art. 181, G. P. Q.]— The judgment appealed from (19 R. L. N. S. 444), affirming the judgment of the Superior Court, which main- tained the plaintiff's action to recover cer- tain substituted lands on the ground that the rights of the substitute had not been purged by a sheriff's sale thereof, was af- firmed with a variation in regard to the e.rpertise ordered respecting the amounts to be allowed to the purchaser at the sheriff's sale for imprbvements made thereon and as to accounts for rents, Issues and profits. Brodeur, J., dissented. — Per Duff and Anglin, JJ. — The provisions of the Civil Code in regard to the registration of un- opened substitutions do not contemplate reg- istration affecting immovables, as such, but refer merely to registration necessary to the operation of the instrument creating the substitution ; consequently articles 2090 and 2091 of the Civil Code have no application. — Per Duff, J., Brodeur, J., contra. — ^Article 781 of the Code of CivU Procedure deals primarily with procedure and should be con- strued in connection with article 953 of the Civil Code so as to effectuate riehts resting upon the provisions of the Civil Code relating to substantive law. Vade- boncoBur v. Oity of Montreal (29 Can. S. C. R. 9), distinguished. — Per Duff and Anglin, JJ. — The registration of an instru- ment creating a substitution is effective from the date upon which it is registered and 1151 SUCCESSION. 1153 protects the rights of the substitute against the right acquired by a purchaser under a subsequent sale in execution made by the sheriff. Trudel v. Parent (Q. R. 2 Q. B. 578), referred to. — Per Anglin, J. — ^In the case of a sale under execution against an institute, subsequent to the registration of the substitution, the purchaser at sheriff's sale acquires merely the personal interest of the institute subject to the substitution ; such a title cannot defeat the claim of the substitute.— Per Brodeur, J., dissenting. — Inasmuch as the claim of the execution creditor was for a debt due and exigible prior to . the date when the instrument creating the substitution was registered, the effect of the sale by the sheriff was to dis- charge the immovable sold from the claim of the substitute and to give the purchaser at that sale an absolute title to the land having priority over that of the substitute. Leroux v. Mcintosh, lii., 1. SUCCESSION. . 1. Partition — Litigious rights — Pacte de quota, litis — Illegal consideration — Plead- ing — Retrait successoral.] — ^Where a con- veyance affects a specified share of an im- moveable, the exception of retrait successoral cannot be set up under art. 710 C. 0. Ba^)ter v. Phillips (23 Can. S. C. R. 317) and Leclerc v. Beaudry (10 L. C. Jur. 20), referred to. — Moreover, in the present case, as the controversy did not relate to the succession, the assignor could not in any event, exercise the droit de retrait succes- soral. — Semlle, however, that the retention of a fractional interest in the property might have the effect of preserving the right of retrait successoral. (Privy Council re- fused leave to appeal.) Meloche v. Deguire, xxxiv., 24. And see Title to I/and. 2. Successions — AppeaX — Jurisdiction — Security iy heneficiary — Controversy in- volved — Future rights — Interlocutory order.] — An application for the approval of secur- ity on an appeal to the Supreme Court of Canada from an order directing that a bene- ficiary should furnish the security required by article 663 of the Civil Code of Lower Canada was refused on the ground that It was interlocutory and could not affect the rights of the parties interested. Kirkpatrick V. Birks, xxxvii., 512. 3. New Brunswick statute — Foreign hank — Special deposit in local hranoh — Depositor domiciled in Nova Scotia — Deft* due hy hank — Notice of withdrawal — Enforcement of payment — Domicile.] — Xj., whose domicile was in Nova Scotia, had, when he died, .$90,000 on deposit in the branch of the Bank of British North America, at S't. John, N.B., The receipt given him when the deposit was made provided that the amount would be accounted for by the Bank of British North America on surrender of the receipt and would bear interest at the rate of 3 per cent, per annum. Fifteen days' notice was to be given of its with- drawal. L.'s executors, on demand of the manager at St. John, took out ancillary pro- bate of his will in that city, and were paid the money. The Government of New Bruns- wick claimed succession duty on the. amount. — Held, reversing the judgment of the Supreme Court of New Brunswick (37 N. B. Rep. 558), Idington and Duff, JJ., dissenting, that the Government was not entitled to such duty. — Held, per Davies and Anglin, JJ., that notice of withdrawal could be given and payment enforced at the head office of the bank in London, England, and perhaps at the branch in Montreal, the chief office of the bank in Canada. — Attor- ney-Oeneral of Ontario v, Newmun (31 O. R. 340, 1 Ont. L. R. 11), questioned. Lovitt V. The King, xliii., 106. 4. Constitutional law — Construction of statute — B. N. A. Act, 1867, s. 92, s.-s. 2 — R. 8. Q., 1888, a. 1191 (h), 1191(c); (Que.) 57 Vict. c. 16, s. 2; 6 Edw. VII. c. 11, s. l^Legislative jurisdiction — "Direct taxation within the province" — Extra-ter- ritorial movahles — Decedent domiciled in province.] — The legislative authority of a province in the matter of taxation confer- red by s.-s. 2 of s. 92 of the "British North America Act, 1867," which authorizes the levying of "direct taxation within the pro- vince," extends to the imposition of duties upon the transmission of movables having a local situs outside the provincial boundaries which form part of the succession of a de- cedent domiciled within the province. Wood- ruff v. The Attorney-General Jar Ontario (1908), A. C. 508, distinguished. Judg- ment appealed from (Q. R. 20 K. B. 164), reversed, Davies and Anglin, JJ., dissenting, ^At the time of the death of C L. C, 11th April, 1902, the statutes in force in the Province of Quebec relating to succes- sion duties provided that "all transmissions, owing to death, of the property in, usufruct or enjoyment of movable and immovable property in the province shall be liable to the following taxes calculated upon the value of the property transmitted, after de- ducting debts and charges existing at the time of the death, etc." Subsequently, by 6 Edw. VII. c. 11, a clause was added (s. 1191(c)), as follows: "The word 'pro- perty' within the meaning of this section shall include all property, whether movable or immovable, actually situate or owing within the province, whether the deceased at the time of his death had his domicile within or without the province, or whether the debt is payable within or without the province, or whether the transmission takes place within or without the province, and all movables, wherever situate, of persons having their domicile (or residing), in the Province of Quebec at the time of their death," which was in force at the time of the death of H. H. C, 26th December, 1906. Succession duties were levied, in respect of both estates, upon the whole value of the property devolving includiag, in each case, movable property locally situated in the United States of America. The action was to recover back those portions of the duties paid in respect of the value of the movables, situated outside the limits of the Province of Quebec. — Held, reversing the judgment appealed from (Q. R. 20 K. B. 164). Davies and Anglin, JJ., dissenting, that the mov- able property situated outside the limits of Quebec forming part of the succession of H. H. C. was subject to the duty so im- 1153 SUCCESSION. 1154 posed. — On an equal division of opinion among the judges of the Supreme Court of Canada the judgment appealed from stood affirmed in so far as it held that the mov- able property situated outside the limits of Quebec forming part of the estate of C. L. C. was not liable to such taxation. The King V. Cotton, xlv., 469. 5. Constitutional law — Provincial legisla- tion — Taxation — Property within province — Bona notaiiiia — Sale of lands — Covenant — Simple contract — Specialty — Construction of statute — Severable provisions — R. 8. M., 1902, c. 161, s. 5 (Man.)— 4 <& 5 Edw. Til. c. 45, s. 4 (Man.) — Appeal — Jurisdiction — Surrogate Court — Persona designata.} — ^M., who died in June, 1908, bad his domicile in Manitoba and, under a verbal agreement, had erected elevators for L., also domiciled in Manitoba, on lands belonging to the Can- adian Pacific Railway Company in the Pro- vince of. Saskatchewan. Until fully paid for the buildings were to remain the pro- perty of M., who was to retain possession and operate the elevators and all net rev- cniies were to be applied in redjfction of the price for which they had been constructed. M. also owned lands in Saskatchewan, known as the "Kirkella Lands," which he had agreed to sell to purchasers under agree- ments under seal, in his possession in Mani- toba at the time of his death, by which he remained owner until they had been fully paid for and then the lands were to be con- veyed to the purchasers. The agreements contained no specific covenant to pay the price of the lands. The executors denied the right of the Government of Manitoba to collect succession duties in respect of these debts under the Manitoba "Succession Duties Act," R. S. M., 1902, c. 161, s. 5, as re-enacted by the Manitoba statute 4 & 5 Edw. VII., c. 45, s. 4. — Per curiam. — The debt due under the contract with L. con- stituted property within the Province of Manitoba and, as such, was liable for suc- cession duty as provided by the Manitoba statute. Also Davies, J., dissenting, that - under the agreements for sale of the "Kirk- ella Lands" a covenant to pay should be implied and, consequently, they were spe- cialty debts which, ,as such, constituted property within the Province of Manitoba and were liable for succession duty there. — Per Davies, Idington, Anglin and Brodeur, JJ. — The duties imposed by the Manitoba "Succession Duties Act" are direct taxation and, consequently, the legislation imposing them is intra vires of the provincial legis- lature. — Per Idington and Brodeur, JJ. — The provincial legislature i.s competent to impose taxation as a condition for obtain- ing the benefit of probate. — Per Duff, J. — ■ In so far as the statute professes to im- pose duties in respect of property having a situs within Manitoba it is intra vires of the provincial legislature. Ren v. Lovitt ( [1912] A. C. 212), followed. In so far as the statute professes to impoiw duties on property not having a situs in Manitoba, and without re- spect to the domicile of the owner, the rea- soning of Lord Moulton in Cotton v. The King ([1914] A. C. 176), applies, the result of which is that such taxation if effectual in cases in which the beneficiary is domiciled abroad cannot be "direct taxation" within the meaning of s. 92 of the "British North America Act, 1867." — Per Anglin, J.— The succession duties imposed by the Manitoba statute are not fees payable for services rendered, but constitute taxation subject to the restrictions mentioned in item 2 of s. 92 of the "British North America Act, 1867." — Per Duff and Anglin, JJ. — The pro- visions of the Manitoba '^Succession Duties Act" in respect to taxation which may be ultra vires may be treated as severable and do not render the statute ineffective as a whole. — Idington and Anglin, JJ., questioned the jurisdiction of the Supreme Court of Canada under s.-s. (d) of s. 37 of the "Su- preme Court Act," to entertain an appeal in a matter or proceeding ^originating ill the Surrogate Court of Manitoba. — ^Anglin, J., suggested that in the proceedings provided for by s. 19 of the Manitoba "Succession Duties Act" the judge of the Surrogate Court would act as persona designata and that there may not be an appeal from his order to the Supreme Court of Canada, — The judgment appealed from (24 Man. R. 310) , was affirmed. Standard Trusts Go. V. Treasurer of Manitoba, li., 428. 6. Partnership property — Owners not domiciled in province — Interest of deceased partner— R. S. B. C. 1911, c. 217, s. 5, s.-s. la — Taxation — Legislative jurisdiction — • "B. N. A. Act, 1867," s. 92 — Constitutional law.] — By s. 5 of the "Succession Duties Act" of British Columbia (fR. S. B. C. [1911] c. 217), on \he death of any person his property in the province "and any in- terest therein or income therefrom . . . passing by will or intestacy" is subject to succession duty whether such person was domiciled in the province or elsewhere at the time of his death. M. B. and his brother were partners doing business in Ontario and owning timber limits in British Col- umbia. The firm had no place of business nor man of business in that province and never worked the limits. The^ partnership articles provided : "8. If either partner shall die during the continuance of the partnership his executors and administrators shall be entitled to the value of his share in the part- nership assets. — 9. On the expiration or oth«r determination of the said partnership a valuation of the assets shall be made and after providing for payment of liabilities the value of such property stock and credits shall be divided equally between the part- ners, etc." M. B. having died while the partnership existed his share in the partner- ship assets passed by his will to executors. The Province of British Columbia claimed that his interest in the timber limits was subject to succession duty. — Held, Davies and Anglin, JJ., dissenting, that under the terms of the articles of partnership M. B. at the time of his death had an interest in the timber limits in British Columbia which, passed by his will and such interest was sub- ject to duty under section five of the B. C. "Succession Duty Act." — IIe?d, also, that the imposition of the duty, if taxation, was "direct taxation within the province" and within the competence of the Legislature of British Columbia. Boyd v. Attorney-Gen- eral British ColumUa, liv., 532. 1155 SUEETYSHIP. 1156 SUDBURY BRANCH, C. P. RY. See Railways. isdiotion of Parliament — Independence of < judges — Judicial -functions — 'Constitution of courts — Administration of laws of Canada — Provincial legislative jurisdiction, xliii., 536. See Constitutional Law. SUMMARY CONVICTION. 1. Criminal law — Habeas corpus — Cer- tiorari — Keeping house of "ill-fame" — Re- viewing evidence — Construction of statute, Cout. Cas. 35. See Habeas Corpus. 2. Criminal Jaw — Summary convictions and orders — Procedure ty magistrate — Delay in issuing commitment — Term of imprison- ment — Commencement of sentence — "Canada Temperance Act, 1818," Cout. Cas. 71. See Habeas Coepus. 3. Habeas corpus — Criminal taw — Juris- diction of judge of Supreme Court of Canada ■ — Issue of writ out of jurisdiction of pro- vincial courts — Concurrent jurisdiction — R. S. C. (1886), c. 135, s. 32 — Construction of statute — Constitutional law — Powers of Parliament — "Inland Revenue Act" — "Selling and delivering a still and worm" — Cumulative charge — Adjournment — Convic- tion in absence of accused, Cout. Cas. 110. See Habeas Corpus. And see Cbiminal Law. SUNDAY OBSERVANCE. Constitutional law — Sunday observance — Reference to Supreme Court — R. S. C. c. 135, s. 37 — 5l & 55 Vict. c. 25, s. i — Legislative jurisdiction.] — The statute 54 & 55 Vict, c. 25, s. 4, does not empower the Governor- General in CounoU to refer to the Supreme Court for hearing and consideration sup- posed or hypothetical legislation which the legislature of a proyince might enact in the future. Sedgewick, J., dissenting. — The said section provides that the Governor-in-Coun- cil may refer important questions of law or fact touching specified subjects "or touch- ing any other matter with reference to which he sees fit to exercise this power." -- Held, Sedgewick, J., contra, that such "other matter" must be ejusdem generis within the subjects speci-fied. — ^Legislation to prohibit on Sunday the performance of work and labour, transaction of business, en- gaging in sport for gain or keeping open places of entertainment is within the juris- diction of the Parliament of Canada. _ At- torney-Q-eneral for Ontario V. Hamilton Street Railway Co. ([1903] A. C. 524), fol- lowed. (Leave to appeal to Privy Council refused, 26th July, 1905.) In re Legisla- tion respecting Abstention from Laiomr on Sunday, xxxv., 581. SUPREME COURT ACT. Constitutional law — Construction of statute— B. N. A. Act, ss. 91, 92, 101— "Supreme Court Act," R. S. 0. (1906), c. 139, ss. 3, 60 — References by Oovernor-Oen- eral in Council — Opinions and advice — Jur- SURCHARGING AND FALSIFYING. Construction of statute — N.-W. Ter. Ord., 1898, c. 34 — Extra-judicial seizure — Chattel mortgage — Sale through bailiff — Excessive costs — Penalty — Waiver — "Bank Act," R. 8. C. (1906) c. 29, s. 91— Interest — Contract — Excessive charges — Settlement of account stated — Voluntary payment — Reduction of rate — Removal of mortgaged property — Neg- ligence — Measure of damages, xliv., 473. See Chattel Mortgage. SURETYSHIP. 1. Simple ^contract ■ — Discharge of one surety under seal — Confirmation of original guarantee — Death of surety — Powers of exe- cutors — 'Continuance of guarantee.]— G. and others, by writing not under seal, agreed to guarantee payment of advances by a bank to a company. Later, by writing under seal, all the sureties but one consented to dis- charge the latter from liability under the guarantee, the document providing that the parties did in every respect "ratify and confirm the said guarantee and consent to be bound thereby as if the said Ogle Oarss bad never been a party thereto." — -Held, that the last mentioned instrument did not convert the original gurantee into a specialty and C. having died an action thereon by the bank against his executors instituted more than six years after his death was barred by the Statute of Limitations. — Held, per Davies, Idington and Duff, JJ., that the exe- cutors had no power to continue the guar- antee terminated by C's death by consent- ing to an extension of time for payment of the amount then due notwithstanding the provision in the guarantee that it was to be continuing and that the doctrines of law and equity in favour of a surety should not apply thereto. TJnion Bank of Canada v. Clark, xliii., 299. 2. Insurance — Fidelity bond — Untrue re- presentations — Materiality — R. S. O. [189T] c. 203, s. Ul, s.-s. 2.]— The tax collector of a town applied to a guarantee company for a bond to secure the corporation against loss by his dishonesty. The company sub- mitted to the Mayor a number of questions which he answered in writing, one being, "what means will you use to ascertain whether his accounts are correct?" Hia • answer was, "Auditors examine rolls and his vouchers from treasurer yearly." The audi- tors never examined the rolls during the time the security continued. — Held, per Fitzpatrick, C.J. and Idington and Anglin, JJ., affirming the judgment of the Appellate Division (30 Ont. L. R. 618), Davies, J., dissenting, that this was an untrue repre- sentation which avoided the security. — Held, per DufiE, J. — ^That the judgment of the court below could be supported on the ground 1157 SUEVEY. 115&-- that material representations made upon the application for the contract of renewal upon which the action was brought were untrue and that the effect of sub-section (o) is that such misrepresentations avoid the con- tract ab initio. — Per Davies, J. — That the answer meant only that the "Municipality Act" required a yearly audit, which would be complied with, and that it was not the Mayor's duty to check such audit and see that it was properly performed. — The bond was renewed without fresh submission of the questions to the Mayor. — Seld, that as the renewal referred to the Mayor's answers as incorporated therein, and as the latter had signed an agreement that they should form the basis of the bond or any renewal or con- tinuation of the same the answers and repre- sentations made thereby applied to such re- newal. — Seld, further, that s.-s. 2 of s. 141 of the Ontario "Insurance Act" (R. S. O. [1897] c. 203), does not require the policy to state that any particular representation is material to the contract, its effect being only that no misrepresentation shall void the policy unless it is material. — Jordan V. Provincial Provident Institution (28 Can. S. C. R. 554), followed. Town of Arnprior V. United States Fidelity & Guaranty Co., li., 96. 3. Company law — Trading company — Powers — Contract of suretyship — R. 8. 0. [1897] c. 191, li., 518. See Company Law. 4. Debtor and creditor — Surety — Statute of Frauds — Advances to company — Third party's promise to pay. Gilles v. Brown, liii., 557. See Debtor and Ceeditob. See Pbincipal and Stibett. SURPRISE. See Costs ; Pleading ; Practice. SURRENDER. Crown lands — Lands vesting in Crown — Constitutional law — "B. N. A. Act, 186T," is. 91(,2i), 109-117 — Title to "Indian lands" —Sale by Commissioner — Property in Can- ada and the provinces — "Indian Act," 39 Vict. c. 18; R. S. C, 1906, c. 43, s. m — Evidence — Public document — Legal maxim. Attorney-General v. Qiroux, liii., 172. See Indians. SURVEY. 1. Highway — Road allowances — Reserva- tions in township survey — General instruc- tions — Model plan — Evidence.] — ^Where the Crown surveyor returned the plan of original survey of a township without indicating re- servations for road allowances upon the boundaries of the township, and his field notes appeared to the court to support the view that no such allowances had been reade ■by him: — Eeld, that the general instruc- tions and model plan for similar surveys did not afford a presumption sufficiently Strong for the inference that there was an intention upon the part of the Crown to establish such road allowances. — ^Judgment appealed from reversed. — Tanner v. Bissell (21 U. C. Q. B. 553), and Boley v. McLean (41 U. C. Q. B. 260), approved.— (Privy Council refused leave to appeal.) Town- ship of East Hawkesbury v. Township of Lochiel, xxxiv., 513. 2. Boundary — Order for bornage — Evi- dence — Existing posts and blazing— Injunc- tion — Expertise — Reference to surveyors — Reports and plans — Costs in action en born- age.] — The Court of King's Bench, appeal side (Q. R. 15 K. B. 432), affirmed, with slight variations, a judgment ordering a re- ference to surveyors to run a boundary line according to a division line, between posts said to exist and blazings on trees, directing them to make a plan and report, and reject- lug objections to the reception of certain evidence. The judgment appealed from held that oral testimony as to a former bornage by a surveyor, with his field notes, as to the existence of posts at either end of the division line, blazings along the line and of 18 years possession in conformity therewith was admissible and sufficient to establish a settlement of boundaries, in the absence of an official statement or proces-verbal thereof, and that costs had been properly awarded to the successful party in the action en bornage, which was governed by the usual rules as to costs. An appeal to the Supreme Court was dismissed for the reasons given in the court below. Laurentide Mica Co. v. For- tin, xxxix., 680. 3. Expropriation of land — Statutory auth- ority — Manufacturing site — Location — Tres- pass, xxxiv., 394. See EXPEOPEiATiON. 4. Appeal — Jurisdiction — Petitory ac- tion — Bornage — Surveyor's report — Costs — Order as to location of boundary line — Execution of judgment, xxxiv., 617. See BouNDAEY. 5. Survey — Practice — Pleading — Con- dition precedent — Construction of statute — 59 Vict. c. 62, ss. 9, 25 (B.C.) — Mineral claim' — Expropriation — Watercourses — Waterworks — Damages — Waiver — Injunc- tion — Trespass, xxxv., 309. See EXPEOPEIATION. 6. Crown land — Mining lease — Trespass — Conversion — Title to land — Evidence — Description in grant — Plan of survey — Certified copy, xxxv., 527. See Evidence. 7. Title to land — Plan of survey — Evi- dence — Onus of proof — Findings of jury — Error — New trial, xxxviii., 336. See New Tbiai. 8. Highways — Old trails of Rupert's Land ■ — Width of highway — Construction of statute — "North-West Territories Act," s. HQg — Transfer of highway — Plans — Regis- tration. Rowland V. City of Edmonton, 1., 520. See Highways. 1159 TENANT FOE LIFE. 1160 SWAMP LANDS. See Manitoba Swamp Lands. SYNDICATE. See Company ; Partnership. TARIFF. 1. Customs duty — 'Canadian Tariff, 1907, items 503-506 — Importation of lumber — "Sawn planks" — "Dressed on one side only" — "Not further manufactured" — Sizing hy saw — Free entry.] — Under item 504 of the "Customs Tariff, 1907," the impoi?tation into Canada is permitted free of duty of lumber described as "planks, boards and other lumber of wood, sawn, split or cut, and dressed on one side only, but not further manufactured." — Held, reversing the judg- ment appealed from (14 Ex. ,C. (R. 53), Duff and Anglin, JJ., dissenting, that sawn boards or planks which have been "dressed on one side only" by a machine which not only dresses them on one side but, at the time of such operation, reduces them to uniform widths, by means of another sawing process which has the effect of "sizing" the lumber, have not thereby been subjected to such "further manufacture" as would bring them within the exception from free entry under item 504. Foss Lumber Co. V. The King, xlvii., 130. 2. Construction of statute — "Jtailwa/y Act," R. S. C, 1906, c. 37, ss. 26, 918 — Joint freight tariff — Power to supersede — Declaratory decree — Jurisdiction of Board of Railway Commissioners, xlvii., 155. See Raii-WAYS. TAXATION. 1. 'Lease — Construction of covenant — Partial exemption, xliii., 288. See Landlord and Tenant. 2. Succession duty. King, xliii., 106. See Lovitt v. The 3. The King v. Cotton, xlv., 469. 4. Customs. See Foss Lumher Co. v. The King, xlvii., 130. 5. Taxation — Legislative jurisdiction — Ancillary powers. B. C. Electric R. R. Co. V. V. V. ^ E. R. R. & Nav. Co., xlviii., 98. See Railways. 6. Smith v. Vermilion Hills, xlix., 563. 7. Municipal hy-law — Exemption from taxation — Validating legislation — School rates — "Puhlic School Act," 55 Vict. c. 60, s. Jf (Ont.) — 'Special iy-law. Can. Niagara Power Co. v. Stamford, I., 168. See Assessment and Taxes. 8. Cortstitutional law — Provincial legisla* tion — Succession duties — Taxation — Pro- perty within province — Bona notabilia — Sale of lands — Covenant — Simple contract — Spe- cialty — Construction of statute — Severable provisions — R. S. M., 190S, c. 161, s. 5 — 4 <& 5 Edw. VII. 0. 45, s. 4 (Man.) — Appeal — Jurisdiction. Re Muir, li., 428. See Constitutional Law. See Assessment and Taxation. 9. Southern Alberta v. McLean, Beron v, Lalonde, liii., 151. TELEPHONE. 1. Negligence — Dqngerous works plgyer and employee, xxxvi., 1. See Tramway. Emr 2. Pleading — Purchase for value without notice — Onus of proof — Affirmative and nega- tive evidence — Weight of evidence, xl., 510. See Evidence. 3. Evidence — Telephone conversation — Corroboration. Warren, Osowski & Co. v. Forst & Co., xlvi., 642. 4. Railway Board — Powers — "Railway Act" and amendments — Use of long distance lines — Compensation — Loss of local business — Competing companies — Special toll, liii., 583. See Railway. TEMPERANCE ACT. See "Canada Temperance Act.' TENANT. Title to land — Room in building — Adverse possession — Statute of Limitations — Inci- dental , rights — Implied grant — License or easement, xl., 313. See Title to Land. And see L^andlord and Tenant. TENANT FOR LIFE. Title to land — Conveyance of fee — Reser- vation of life estate — Possession— Eject- ment.] — In October, 1853, D. conveyed to his father and two sisters six acres of land for their lives or the life of the survivor. A few days later he conveyed a block of land to M. in fee "saving and excepting" thereout six acres for the life of the grantor's father and sisters or that of the survivor, or until the marriage of the sisters, on the happen- ing of said respective events the six acres to be and remain the property of M., bis heirs and assigns under said deed. Three months later M. conveyed the block of land to R. M. in fee, and when the life estate terminated, in 1903, the latter brought eject- ment against the heirs of the life tenants. 1161 TIMBEE. llGv who claimed the six acres on the ground that the deed to M. contained no grant of the same and also because the life tenant had bad adverse possession for more than twenty years. — Held, that as the evidence shewed that the life tenants went into possession under K. M. the title of the latter could not be disputed and the statute would not begin to run until the life estate terminated. Held, per Idington, J., that K. M. under his deed and that to his grantor had the reversion to the fee in the six acres after the life estate terminated. The lease of the life estate was given to K. M. with the other title deeds on conveyance of the land to him and on the trial it was received in evidence as an ancient document relating to the title and coming from proper custody. It was not executed by the lessees and no counterpart was proved to be in existence. — Held, that it was properly admitted in evi- dence. Dods v. McDonald, xxxvi., 231. TENDER. 1. Judicial sale of railways — Interested bidder — Disqualification as purchaser — Counsel and solicitors — Art. 1^84 C. 0. — Construction of statute — Discretionary order — Review by Appellate Court — 4 & 5 Edw. VII. c. 158 (D.) — Public poiicy, xxxvii., 303. See Railways. 2. Accident insurance — Condition of pol- icy — Notice — Tender before action — Waiver, xliv, 386. See Insurance, Accident. 3. Chattel mortgage — Sale under power — Notice — Offer to redeem — Equitable relief — Evidence — Proceedings taken in good faith, xlv., 302. See Chattel Mortgage. TERMS, INTERPRETATION OF. See Words and Phrases. THEATRES. Construction of statute — Quebec "Sunday Act" — Prohibition of theatrical perform- ances — Local, municipal and police regula- tions — Criminal law — Legislative jurisdic- tion — Validation by federal legislation — "Lord's Day Act," xlvi., 502. See Constitutional Law. THREE-MILE-ZONE. Canadian waters — Fishing by foreign ves- sels — Legislative jurisdiction — Seinure^ on high seas — Pursuit beyond territorial limit — International law — Constitutional law — Seacoast fisheries — Construction of statute — B. N. A. Act, 1861, s. 91. s.-s. 12— R. S. 0. c. 9i, ss. 2, 3, Ji, xxxvii., 385. See Constitutional Law. TIMBER. 1. Construction of contract — SoJe of tim- ber — Fee simple — Right of removaV— Rea- sonable time.l — In 1872 M., owner of tim- ber land, sold to B. the pine timber thereon with the right to remove it within ten yeare. In 1881 another agreement replaced this and conveyed all the timber standing, growing or being on the land to have and to hold the same unto the said party of the second part, bis heirs and assigns "forever" with a right at all reasonable times during years to enter and cut and remove the same. B. exercised his rights over the timber at times up to his death in 18&3, and bis executors did so after his, death, M. not objecting. In 1903 persons authorized by said executors entered and cut timber and continued until 1905. The following year B. brought an action for an injunction against further cutting, a declaration that the right to take the timber had lapsed and for damages. — Held, affirming the judgment of the Court of Appeal (15 Ont. L. R. 557), Davies and Duff, JJ., dissenting, that the instrument executed in 1881 did not con- vey to B. the fee simple in the standing timber, but only gave him the right to cut and remove it within a reasonable time, and that such time had elapsed before the entry to cut in 1903 and M. was entitled to dam- ages. Beatty v. Mathewson, xl., 557. 2. Constitutional law — Provincial compan- ies' powers — Operations beyond province — Insurance against fire — Property insured — Standing timber — Return of premiums — B. N. A. Act, 186T, s. 92(11), xxxix., 405. See Insurance, Fire. 3. Title to land — Sale ■ — Construction of deed — Reservation of growing timber — Rights of vendor and purchaser — Resolutive condition, xl., 98. See Deed.. 4. Mandamus — Driving timber — Order to fix tolls — Past user of stream — • Appeal — River improvements — R. S. 0. (1897) c. 1.1,2, s. 13, xl., 523. See Mandamus. 5. SaZe of standing timber — Registration of real rights — Ownership — Distinction of things — Movables and immovables — Priority of title, xli., 105. See Registry Laws. 6. Rivers and streams — Floating logs — Servitude — Faculty or license — Possessory action — Injunction. Price Bros. v. Tan- guay, xlii., 133. See Appeal. 7. Watercourses — Driving timber — "Dam- ages resulting" — Reparation — Riparian rights — Construction of statute — Arts. 7298, 7349 R. S. Q., 1909 — Servitude— Injury caused by independent contractor — Liability of owner of timber. Dumont v. Eraser, xlviii.,. 137. See Rtvebs and Streams. 8. Action — Damages — Timber on pre- empted lands— Rights of pre-emptor—B. 0. 1163 TITLE TO LAND. 1164 "Land Act," B. S. B. C, 1911, c 129, ss. 77 et seq. and 132 — Negligence — Fire set iy railway locomotive, xlix., 33. See Damages. 9. License to cut timber — Indian lands — R. B. 0. 11886] c. 43, ss. 54 and 55 — License for twelve months — 'Regulations — Renewal of license, li., 20. See Oeown. TIMBEK LICENSE. 1. Timber license — Crown lands in British Columbia — Real estate — Personalty — Con- tract — Sale — Exchange — Consideration — Payment in joint stock shares — Vendor's lien — Evidence — Onus of proof — Pleading and practice.] — ^A sale of rights under licenses to cut timber on provincial Crown lands in British Columbia is a contract for the sale of interests in real estate, and the timber berths are subject to a vendor's lien for the unpaid purchase money. — The doctrine of vendor's lien for unpaid purchase money is applicable to every sale of personal pro- perty over V7hich a court of equity assumes jurisdiction. In re Stucley ((1906), 1 Cb. 67), followed. — In order to protect himself against the enforcement of a vendor's lien, a defendant relying on the equitable de- fence of purchase for value without notice is bound to allege in his pleadings and to prove that he became purchaser of the pro- perty in question for valuable consideration and without notice of the lien. In re Nisbett and Potts' Contract ([1905] 1 Ch. 391; [1906] 1 Ch. 386), followed. Whitehorn Brothers v. Davison ([1911] 1 K. B. 463), distinguished. — (Leave to appeal to the Privy Council was refused on the 29th of July, 1911.) Laidlaw v. Vaughan-Rhys, xliv., 458. 2. Construction of deed — Description of land — License to cut timber — Ambiguitas latens — Evidence — Boundary of timber area, xxxviii., 75. See Deed. 3. Mining Act — Grant of mining land — Reservation of pine timber — Right of grantee to cut for special purposes — Trespass — Cut- ting pine — Right of action, xlvi., 45. See Mining Laws. TIMBER MARKS. Sale of railway ties — Delivery — Bank Aci lien — Trade marks — Timber marks.] — ^The action was for the price of railway ties sold to the company and the question on the ap- peal was as to 20,000 of these ties claimed by T. & Co., as purchasers from the Union Bank, which claimed them under a Bank Act lien for advances to G., by whom they had been manufactured. The validity^ of the lien was contested for want of sufficient description as required in the Bank Act, and questions arose on the appeal as to wTietber timber brands are property marks or merely trade marks, and if they make primd facie proof of ownership under the Timber Marks' Act passed in 1870. Both courts below decided against the appellant on the ground of the insufficiency of the evidence, and on appeal to the Supreme Court of Canada was dismissed for the reasons given in the Superior Court. Magann v. Grand- Trunk Ry. Co., Cout. Cas. 266. TIME. 1. Construction of statute — "Marsh Act," R. 8. N. 8. 1900, s. 66, s.-s. 22, 66^Jurisdic- tion of Marsh Commissioners — Assessment of lands — Certiorari — Limitation for granting writ — Practice — Expiration of time limit — Delays occasioned by judge — Legal maxim — Order nunc pro tunc, xxxvii., 79. See Ceetioeaei. 2. Election petition — Time for trial — -Erir largement, xxxvii., 601. See Election Law. 3. Chattel mortgage — Renewal — Tim^ for filing — Identification of goods — Sufficiency of description — Proof of judgment and execu- tion. Cam. Cas. 436. See Chattbx Mobtgage. 4. Appeal — Jurisdiction — Final judgment — Time for appealing — Exchequer Court Act, R. S. C, 1906, c. IJfO, s. 82^Exchequer Court Rules, xli., 1. See Appeal. 5. Controverted election — Service of peti- tion — Extension of time — Substitutional service— R: S. C, 1906, c. 7, ss. 11, 18, rU., 410. See Election Law. 6. Sale of goods by sample — Delivery — Con-: dition f.o.h. — "Sale of Goods Act," R. 8. M:, 1902, 0. 152 — Notice of rejection — Reason- able time — Breach of warranty — Damages, xli., 435. See Sale. 7. Appeal — Limitation of time — Jurisdic- tion of Board of Railway commissioners — Leave by judge — Powers of Board — Com- pleted railway — Order to provide station. G. T. R. V. Dept. Agriculture of Ont., xlii., 557. See Board or THailwat Commissionebs. title to land. 1. Agreements, Conveyances and Deeds, 1-26. 2. Evidence of Title, 27-34. 3. Incumbrances, 35-41. 4. Inheritance, Successions, &c., 42-45. 5. Possession, 46-61. 6. Registration, 62-69. 7. Trusts, 70-72. 8. Other Matters, 73-101. 1. Agreements, Conveyances and Deeds. 1. Conveyance of land — Description of pro- perty sold — Partition — Petitory action — 1165 TITLE TO LAXD. 1166 "Queiec Act, ITU" — Introduction of Eng- lish criminal laws — Champerty — Mainten- ance — Affinity and consanguinity — Parties interested in litigation — Litigious rights — Facte de quotd litis — Contract — Illegal con- sideration — Specific performance — Retrait successoral.'i — The heirs of M. induced sev- eral persons related to them either by con- sanguinity or by affinity to assist them as plaintiffs in the prosecution of a law suit for the recovery of lands belonging to the suc- cession of an ancestor and, in consideration of the necessary funds to be furnished by these persons, six of the respondents and the mis en cause, entered into the agree- ment sued on by which said plaintiffs con- veyed to each of the seven persons giving the assistance one-tenth of whatever might be recovered should they be successful in the law suit. In an action au pMitoire et en partage, by the parties who furnished such funds for specific performance of this agreement : — Held, reversing the judgment appealed from (Q. R. 12 K. B. 298), Davies, J., dissenting, that the agreement could not be enforced as it was tainted with champerty notwithstanding that the consanguinity or affinity of the persons in whose favour the conveyance had been made might have entitled them to maintain the suit without remun- eration as the price of the assistance. — Held, further, 1° That there could be no objection to the demande au pMitoire being joined in the action for specific performance. — 2° That the defence of retrait de droits litigieux could not avail in favour of the defendants as it is an exception which can be set up only by the debtor of the litigious right in question. Powell v. Watters (28 Can. S. C. R. 133), referred to. 3° That as the con- veyance affected a specified share of an im- movable the exception of retrait successoral could not be set up under art. 710 C. C. Baxter v. Phillips (23 Can. S. O. R. 317) and Leclerc V. Beaudry (10 L. C. Jur. 20), referred to. — Moreover, in the present case, the controversy does not relate to the suc- cession and, in any eTent, the assignor can- not exercise th« droit de retrait successoral. — SemMe, however, that the retention of a fractional interest in the property might have the effect of preserving the right to retrait successoral. (Leave to appeal to Privy Council refused.) MeJoche v. Deguire, xxxiv., 24. And see Champbett. 2. Grown lands — Settlement of Manitoba claims— ^8 k£ 1,9 Vict. c. 50 {D.)—49 Vict. c. 38 (Man.) — Construction of statute — Operation of grant — Transfer in prwsenti — Condition precedent — Ascertainment and identification of swamp lands — Revenues and emblements — Constitutional law.] — The first section of the "Act for the final Settle- ment of the Claims of the Province of Mani- toba on th« Dominion" (48 & 49 Vict. c. 50), enacts that "all Crown Lands in Mani- toba which may be shewn, to the satisfac- tion of the Dominion Government, to be swamp lands, shall be transferred to the province and enure wholly to its benefit and uses." — Held, affirming the judgment ap- pealed from (8 Ex. C. R. 337), Girouard and Killam, JJ., dissenting, that the opera- tion of the statutory conveyance in favour of the Province of Manitoba was suspended lintil such time or times as the lands in question were ascertained and identified as swamp lands and transferred as such by order of the Governor-General in Council, and that, in the meantime, the Government of Canada remained entitled to their ad- ministration and the revenue derived there- from enured wholly to the benefit and use of the Dominion. (Affirmed by the Privy Council [1904] A. C. 799.) Atty.-Oen. for Manitoba v. Atty. Oen. for Canada, xxxiv., 287. 3. Title to land — Grant from Grown — De- scription — Navigable waters — Floatable streams — Inlet of navigable river — Implied reservations — Crown domain — Public law — Construction of deed — Evidence — Estoppel — Waiver.] — ^By the law of England, no waters can be deemed navigable unless they are actually capable of being navigated. — ^An arm or inlet of a navigable river cannot be assumed to be either navigable or floatable, in consequence of its connection with the navig- able stream, unless it be itself na\igable or floatable as a matter of fact. — The land in dispute forms part of the bed of a stream, called the Brewery Creek, which was origin- ally a narrow inlet from the Ottawa River (dry during the summer time in certain parts), the waters of which passed over cer- tain lots shown on the survey of the Town- ship of Hull, and granted by description ac- cording to that survey to the defendants' auteur, in 1806, without any reservation by the Crown of those portions over which the waters of the creek flowed. Under that grant the grantee and his representatives have, ever since, without interference on the part of the Crown, bad possession of the lands on both sides of the creek and of the creek itself. The erection, during recent years, of public works in the Ottawa River has caused its waters to overflow into the creek to a considerable extent at aU seasons of the year. In 1902, the City of Hull obtained a grant by letters patent from the Province of Quebec of a portion of the bed of the creek, as constituting part of the Crown domain, and brought the pres- ent action, au petitoire, for a declaration of title, the Attorney-General iatervening for the province as warrantor. — Held, af- firming the judgment appealed from (Q. R. 13 K. B. 164; 24 S. C. 59) :— 1. That, as the Brewery Creek was neither navigable nor floatable in its natural state, the subsequent overflow of the waters of the Ottawa River into it could not have the effect of alterins the natural character of the creek. — 2. That, as there was no reservation of the lands covered with water in the original grant by the Crown, in 1806, the bed of the creek passed to the grantee as part of the property therein described, whether the waters of the creek were floatable or not. — 3. That the uninterrupted possession of the bed of the creek by the grantee and his representatives from the time of the grant with the assent of the Crown was evidence of the intention of the Crown to make an unqualified con- veyance of all the lands and lands covered with water situated within the limits de- signated in the grant of 1806. Atty.-Gen. for Quebec and City of Hull v. Scott, xxxiv., 603. 4. Sale of mineral claim — Litigious rights — Champerty.] — In Briggs v. ^ewswander 1167 TITLE TO LAND. 1168 (32 Can. S. C. R. 405), the plaintifiE was held entitled to a conveyaijce from defend- ants of a quarter interest in certain mineral claims. In that action Newswander et al. were only nominal defendants, the real in- terest in the claim being in F. After the judgment was given plaintiff conveyed nine- tenths of his interest to G., the expressed consideration being moneys advanced and ■ an undertaking by G. to pay the costs of that action and another brought by Briggs, and, by a subsequent deed, which recited the proceedings in the action and the deed of the nine-tenths, he conveyed to G. the remaining one-tenth of his interests, the consideration of that deed being $500 pay- able by instalments. ' Briggs afterwards as- signed the above-mentioned judgment and his interest in the claims to F. In an ac- tion by iG. against F. for a declaration that he was entitled to the qua,rter interest : — Held, affirming the judgment appealed from (10 B. 0. Rep. 309), that the transfer to G. of the nin#tenths was champertous and the courj: woirid not interfere to assist one claiming^ under a title so acquired. — Held, also, that the transfer of one-tenth was valid, being for good consideration and severable from the remainder of the inter- est. Giegerich v. Fleutot^ xxxv., 327. 5. Servitude — Construction of deed — Re- servations — "Representatives" — Owners par indivis — Common lanes — Right of passage — Private wail — Windows and openings on line of lane— Arts. 533-538 G. 0.]— A con- veyance of lands fronting on public high- ways with the right of passage merely over a private lane does not create a servitude that can entitle the grantee to make win- dows and openings in walls which are built upon the line of the lane. — A reservation in a deed of partition to the effect that lanes through subdivided lands should be held in common by the proprietors par indivis or their representatives must be construed as reserving tHe rights in common only to the co-proprietors, their heirs or the persons to whom such rights in the lanes might be con- veyed. Lespirance v. Oon4, xxxvi., 618. 6. AmHguous description of grantee — "Greek Catholic Church" — Evidence — Con- struction of deed — Reversal of concurrent findings.] — Where Crown lands were granted "in trust for the purposes of the congrega- tion of the Greek Catholic Church at Lime- stone Lake,'' N. W. T., and it appeared that this description was ambiguous and might mean either the Greek Orthodox Church or the Greek Church in communion with the Church of Rome, it was held that the con- struction of the grant should be determined by the facts and circumstances antecedent t(j and attending the issue of the grant and that, in view of the evidence adduced, the words did not mean a church united with the Roman Catholic Church and subject to the jurisdiction of the Pope. Judgment ap- pealed from reversed, the Chief Justice and Girouard, J., dissenting, on the ground that the concurrent findings of the courts below upon matters of fact ought not to be dis- turbed. (Appeal to Privy Council dismissed, [1908] A. C. 65.) Pohishie v. Zacklynski, xxxvii., 177. , 7. Sale — Construction of deed — Reser- vation of growing timber — Rights of vendor and purchaser — Resolutive condition.'] — A deed of sale of wild lands to be used for agricultural purposes clearly expressed cer- tain specific reservations and contained in addition, a clause as follows : "Et de plus la prgsente vente est faite k la condition ex- presse que la dit acqufireiir n'aura pas le droit de couper, enlever ou charroyer aucun bois sur le terrain ci-dessus vendu autrement que pour son propre usage pour faire des batisses sur le terrain, des clStures, et dii bois de chauffage ; il est, en consequence, convenu que si I'acquSreur coupait du bois en violation de la prgse"hte clause, les ven- deurs auront droit de demander la rfeiliation des pr^sentes et de reprendre possession des immeubles ci-dessus vendus sans rien payer a I'acqugreur pour les ameliorations qu'il pourra avoir faites. Et tout bois coupe en violation des prgsentes deviendra, aussitSt coupe, la propriete des vendeurs, car tel est la convention expresse des parties et sans laquelle les presentes n'auraient pas eu lieu." — Held, that, in the absence of any contrary intention expressed in the deed, the title to the lot of land sold passed absolutely to the purchaser with the exception of the special reservations. — Held, also that the clause in question had not the effect of re- serving to the vendors all the timber stand- ing upon the land sold, nor can it be con- strued as giving them the right (without rescission upon breach of the resolutive condition) to re-enter on said land for the purpose of removing stumps or second growth timber. Rioux v. St. Lawrence Terminal Co., xl., 98. , 8. Construction of deed — Easement ap- purtenant — Use of common lane — Overhang- ing fire-escape — Mncroachement on space over lane — Trespass — RigHt of action.] — A grant of the right to use a lane in rear of city lots "in common with others," as an easement appurtenant to the lots conveyed entitles the purchaser to make any reason- aWe use, consistent with the common user, not only of the surface, but also of the space over the lane. The construction of a fire-escape, three feet wide with its lower end 17 feet above the ground (in compliance with municipal regulatidns) , is not an un- reasonable use nor inconsistent with the use of the lane in common by others ; con,se- quently, its removal should not be decreed at the suit of the owner of the land across which the lane has been opened. — Judgment appealed from affirmed, Maclennan, J., dis- senting. Meighen v. Paoaud, xl., 188. 9. Railway aid — Land grant — Crown patents — Dominion Lands Regulations — Reservation of minerals — 53 Vict. c. 4 — R- S. C. c. 5-k — Construction of statute — Free grants — Parliamentary contract.] — ^Tbe Act, 53 Vict. c. 4 (D.), in 1890, granted, as a subsidy in aid of the construction of the railway, certain wild lands of the Crown in the North-West Territories of Canada. When the lands had been earned, by the construc- tion of the railway, the Government of Can- ada refused to issue patents granting the lands to the railway company, or to the land company to which their rights had been assigned, except subject to the reservation 1169 TITLE TO LAXD. 1170 of all mines and minerals and the right to work the same. — Held, per Taschereau, C.J. nnd Girouard, J. — ^That the Dominion Lands Regulations of 1889, paragraph 8, providing for reservations in laud grants, did not ap- ply to the lands given as subsidy, but ex- clusively to grants of land made in ordinary course under the general laws governing the sale, use, occupation, and settlement of Crown lands, which, in regard to this sub- sidy, bad been overriden by the Parliament- ary grant made in virtue of a contract be- tween the C*own and the railway company ; that the railway company's title was perfect without the issue of a patent, which could avail only as evidence of the allotment of particular lands, and there could be no ex- press or implied derogation from the free grant under the statute. — (This view of the ciise was affirmed, on appeal, by the Privy Council (1904) A. C. 765.) — Held, per Davies and Armour, JJ. — That it must be assumed that the lands to be given as sub- sidy were to be subject to the Dominion Lands Reg'ulations of 1889, notwithstand- ing that the Act granting the subsidy de- clared that the lands to be earned by the railway company should be "free grants." (Reversed by the Privy Council, «M sup.) — The judges being thus equally divided in opinion, the appeal stood dismissed with costs, and the Exchequer Court judgment stood affirmed. Calgary and Edmonton Ry. Co. and Calgary and Edmonton Land Co. V. The King, Gout. Cas. 271. . - 10. Deed of land — Description — Am- biguity — Admissions."] — In an action for trespass to land both parties claimed title from the same source, and the dispute was as to which title included the locus. The deed under which S. claimed contained the following as part of the description : "Then running in an eastwardly direction along the said highway until it comes to a cross- way in the public highway and running in a southerly direction until it comes to the waters of Broad Cove." There were two crossways in the highway, and S. contended that the first one reached on the course was indicated, and B.. that it was the second lying a little farther west. — Held, reversing the judgment of the Supreme Court of Nova Scotia (44 N. S. Rep. 332), Iding- ton and Duff, JJ., dissenting, that to run the course to the first crossway would take it over land not owned by the grantor; that there were other difiiculties in the way of taking that course; that S. had appar- ently for many years treated the second crossway as the boundary ; and what evi- dence there was favoured that view. The construction should, therefore, be that the crossway mentioned in the description was the second of the two. Reddy v. Strople, xliv., 246. 11. Canal lands — Mis-user ly Crown — Condition subsequent — Forfeiture. Wright V. The Queen, Cout. Cas. 151. 12. Sale — Falsa demonstratio — • Specific performance, xxxv., 282. See Specific Perfoemance. 13. Rivers and streams — Navigable and Aoatable waters — Obstructions to navigation — Grown lands — Letters patent of grant — Evidence — Collateral circumstances leading to grant — Limitation of terms of grant — Ri- parian rights — Fisheries — Arts. 400, iH, 503 G. C, xxxvii., 577, See RiVEBS axd Streams. 14. Construction of deed — Description of land — License to cut timber — Ambiguitas latens — Evidence — Boundary of timber area, xxxviii., 75. See Deed. 15. Dominion mining regulations — Hy- draulic mining — Placer mining — Lease — "Water grant — Conditions of grant — XJser of flowing waters — Diversion of watercourse — Dams and flumes — Construction of deed — Riparian rights — Priority of right — Injunc- tion, xxxviii., 79. See JIlNES AND JIlNINQ. 16. Subaqueous mining — Crown grants — Dredging lease — Breach of contract — Subse- quent issue of placer mining licenses — Dam- ages — Pleading and practice — Statement of claim — Cause of action, xxxviii., 542. See Mines and Mining. 17. Vendor and purchaser — Sale of land — Formation of contract- — -Conditions — Ac- ceptance of title — New term — • Statute of Frauds — Principal and agent — Secret com- mission — Avoidance of contract- — Fraud — Specific performance, xxxviii., 588. See Contract. 18. Agreement for sale of land — Princi- pal and agent — Estoppel — "Land Gommis- sioner" — Specific performance, xxxix., 169. See Specific Performance. 19. Construction of deed — Title to land — Servitude — Acquiescence — Estoppel by con- duct — Actio negatoria servitutis — Operation of watertcorks, xxxix., 244. See Deed. 20. Contract — Construction of agreement — Fee simple — Sale of timber — Right of re- moval — Reasonable time, xl., 557. See Timber. 21. Municipal corporation — Powers — Land tax sales — Purchase by corporation — Vesting of title — Manitoba Real Property Act — Agreement to re-convey — Necessity of by- law, xli., 18. See Municipal Corporation. 22. Lessor and lessee — Covenant to re- new — Severance of term — Consent of lessor — Enforcement of covenant — Expro- priation — Persons interested. Alex. Brown Milling Co. v. C. P. R., xlii., 600. See Lease. 23. Vendor and purchaser — Sale of land — Agreement — Bond to secure payment of price — Conditions as to title. Colwell v. Neufeld, xlviii., 506. See Vendoh and Ptjrchaseb. 24. Conveyance in fraud of creditor — Hus- band and wife — Advancement — Trustee — iiri TITLE TO LAND. 1172 Equitable relief — Restitution — Evidence — Statute of Frauds, lii., 625. See Public Policy. 25. Deed — Reservation — Right of passage ■ — Changed conditions — Object of conveyance. Caw. Cement v. Fitzgerald, liii., 263. See Easement. 26. Deed of land — Reservation — Right of passage — Changed conditions — Object of conveyance — Easement, liii., 263. See Deed. against a much older plan upon which original grants of the lands in dispute de- pended and that the findings were not based upon evidence sufficient in law to shift the onus of proof from the plaintiflf and were, likewise, Insufficient for the taking of ac- counts in respect to trespass and conversion of minerals complained of: — Held, affirm- ing the order for a new trial made by the judgment appealed from (1 East. L. R. 293), that in the absence of evidence of error therein, the older grants and plan must govern the rights of the parties. Bartlett V. Nova Scotia Steel Co., xxxviii., 336. 2. Evidence op Title. 27: Crown landS' — Mining lease — Trespass — Conversion — Title to lands — Evidence — Description in grant — Plan of survey — Cer- tified copy.l — The provisions of s. 20 of "The Evidence Act," R. S. N. S. (1900), c. 160, do not permit the reception of a certi- fied copy of a copy of a plan of survey de- posited in the Crown Lands Office to make proof of the original annexed to the grant of lands from the Crown. Nova Scotia Steel Co. V. Bartlett, xxxv., 527. 28. Conveyance of fee — Reservation of life estate — Possession — Ejectment.] — In Oc- tober, 1853, D. conveyed to his father and two sisters six acres of land for their lives or the life, of the survivor. A few days later he conveyed a block of land to M. in fee "saving and excepting" thereout six acres for the life of the grantor's father and sisters or that of the survivor, or until the mar- riage of the sisters, on the happening of said respective events,^ the six acres to be and remain the property of M., his heirs and assigns under said deed. Three months later M. conveyed the block of land to R. M. in fee, and when the life estate terminated in 1903, the latter brought eject- ment against the heirs of the life tenants, who claimed the six acres on the ground that the deed to M. contained no grant of the same, and also because the life tenant had had adverse possession for more than twenty years. — Held, that as the evidence shewed that the life tenants went into pos- session under R. M., the title of the latter could not be disputed and the statute would not begin to run until the life estate termin- ated. — Held, per Idington, J., that R. M. under his deed and that to his grantor had the reversion to the fee in the six acres after the life estate terminated. — The lease of the life estate was given to R. M. with the other title deeds on conveyance of the land to hdm and on the trial it was received in evidence as an ancient document relat- ing to the title and coming from proper custody. It was not executed by the lessees and - no counterpart was proved to be in existence. — Held, that it was properly ad- mitted in evidence. Dods v. McDonald, xxxvi., 231. 29. Plan of survey — Evidence — Onus of proof —■ Findings of jury — Error — New trial.l — Where it appeared that In directing the jury, at the trial, the judge attached un- due importance to the effect of a plan of survey referred to in a junior grant as 30. Promise of sale — Entry in land-regis- ter — Tenant by sufferance — Squatter's rights — Possession in good faith — Eviction — Pos- sessory action — Compensation for improve- ments — Rents, issues and profits — Set-off — Tender of deed — Restrictive conditions — Evi- dence — Commencement de preuve par 4crit — Pleading and practice — Arts. Jfll, J^IZ, ^11, 419, 1204, 1S3S, 1476, 1478 C. 0.]— The ap- pellants, plaintiffs, are the grantees of the lands in question, part of the Seigniory of Metapedia, the former proprietors of which had an agent resident in the seigniory, who administered their affairs there. It had been customary, on applications by intend- ing settlers for the purchase of their wild lands, for this agent to take memoranda of their names and permit them to enter upon the lands, and this was done in respect to the lots in question and the applicants were allowed to hold possession and make im- provements thereon without notice of any special conditions limiting the titles which might, subsequently, be granted to them by the owners. The defendants, respondents, acquired the rights of these applicants and, when the plaintiffs tendered deeds of the said lots to them, they refused to accept them on the ground that conditions were inserted which had not been stipulated for at the time of the original entries upon the lots and of which no notice had been given. In actions au p4titoire, the defendants pleaded that their possession had been in good faith in expectation of eventually re- ceiving titles without such restrictive con- ditions as were sought to be imposed and that, in the event of eviction they were en- titled to full compensation for the value of all necessary improvements made on the lands without deductions in respect of rents, issues and profits. — Heid, affirming the judgment appealed from, the Chief Justice and Duff, J., dissenting: (1) That the mem- oranda made by the agent were commence- ments de preuve par 4crit and, having been followed by possession of the lots, were equivalent to a binding promise of sale with- out unusual conditions in limitation of any titles which might be granted; (2) that the entries made upon the lands, the possession thereof held, by the defendants and their au- teurs and the works done by them thereon could not be held to be in bad faith nor with knowledge of defective title ; (3) that, under the circumstances and notwithstand- ing that the defendants had actual notice of prior title, the plaintiffs could not maintain actions au pititoire, although they might be entitled to declarations in confirmation of the deeds tendered, if approved, and to re- cover the price of the lots ; and (4) that the 1173 TITLE TO LAND. 1174 defendants could not be evicted without compensation for the full value of the neces- sary and useful improvements so made upon the lands with the knowledge and consent of the agent, and subject to being retained by the proprietors, without any deductions in respect of the rents, issues and profits de- rivable from the lands. Price v. Neault (12 App. Cas. 110) , followed ; Lojoie v. Deem (3 Dor. Q. B. 69), discussed. — Per Fitzpat- rick, C.J. — Under article 412 of the CivU Code of Lower Canada, the good faith of a possessor of land is dependent upon a grant sufBcient to convey real estate or transmit an interest therein. Saint Law- rence Terminal Go. v. BalU; Saint Law- rence Terminal Co. v. Rioux, xxxix., 47. 31. Vendor and purchaser — Sale of land — Condition dependent — Deferred payment — Disclosure of title — Abstract — Refusal to complete — Lapse of time — Defeasance — Specific performance.'] — In an agreement for the sale of an interest in land, for a price payable by deferred instalments at specified dates, there was a condition for defeasance, at the option of the vendor, for' default in punctual payments, time was of the essence of the contract, and receipt of a deposit on account of the price was acknowledged. Some time before the date fixed for payment of the first deferred instalment the pur- chasers made requisitions for the produc- tion for inspection of the vendor's evi- dence of title to the interests he was selling and the vendor refused to comply with the requisitions. The payment was not made on the appointed date, and the vendor de- clared the agreement cancelled in conse- quence of such default. In suit for specific performance, brought by the purchasers : — • Eeld, affirming the judgment appealed from (17 B. C. Rep. 88), that the vendor was bound, upon requisition made within a rea- sonable time by the purchasers, to produce ■ for their inspection the documents under which he claimed the interests he was sell- ing in the lands ; until he had complied with such demand the purchasers were not obliged to make payment of deferred instalments of the price and, in the circumstances, their failure to make the payment in question was not an answer to the suit for specific per- formance. Cushing v. Knight (46 Can. S'. C. R. 555), distinguished.— Per Duff, J.— In the absence of any express or implied stipulation to the contrary in an agreement respecting the sale of land in British Col- umbia, which is not held under a certificate of indefeasible title, the purchaser is entitled, according to the rule introduced into that province with the general body of the law of England, to the production of a solicitor's abstract of the vendor's title to the interest in the land which he has agreed to sell. Newberry V. Langan, xlvii., 114. 32. Dedication — Public highway — Expro- priation — Presumption — Vser, Cam. Cas. 53. See Highway. 33. Extinguishment of title to Indian lands — Payment by Dominion — Liability of province. Ontario v. Dominion, xlii., 1. See CoNSTiTUTiONAi, Law. 34. Rivers and streams — Navigable or ■fjnnin'hlp ii;ni ers fJmiJ jn arant Rivarion rights — Title to bed of river — Erection of townships — Description of area included — Costs. Maclaren v. Attorney-General for Quebec, xlvi., 656. 3. INOTJMBEANCES. 35. Title to land — Mortgage — Foreclosure — Equitable jurisdiction of court — Opening up foreclosure proceedings — Construction of statute — "Real Property Act," R. S. M. (1902) c. 148—5 m 6 Edw. VII. c. 15, s. S {Man.) — Equity of redemption — Certificate of title.] — ^Under the provisions of s. 126 of the Manitoba "Real Property Act," R. S. M. (1902), c. 148, as amended by s. 3 of c. 75 of the statute of Manitoba, 5 & 6 Edw. VII., the court has jurisdiction to open up foreclosure proceedings in respect of mortgages foreclosed under ss. 113 and 114 of the Act, notwithstanding the issue of a certificate of title, in the same manner and upon the same grounds as in the case of ordinary mortgages, at all events where rights of a third party holding the status of a bonad fide purchaser for value have not intervened. — Judgment appealed from (19 Man. R. 560), reversed. — (Leave to appeal to Privy Council refused, 11th July, 1911.) Williams v. Box, xliv., 1. 36. Vente d rimir6 — Security for loan — Time for redemption — Promise of re-sale — Condition — Equitable relief — Pleading — Waiver — New points on appeal — Mortgage — Practice — Arts. 1549, 1550 C. C.]— Where the right to redeem lands conveyed a droit de rSmird as security for a loan has not been exercised vsdthin the stipulated term, or an extension thereof, the purchaser becomes ab- solute owner and there is no power in the courts of the Province of Quebec under which an order may be made which could have the effect of extending the time limited for redemption. — After the expiration of the time limited for redemption of lands con- veyed a droit de r4m6r4, as security for a loan, the purchaser in a letter written to the vendor, requested payment of the loan before a date mentioned therein and, in de- fault of such payment, insisted upon the rights granted by the conveyance. — Held, that the letter might be considered as a promise of re-sale of the lands to the vendor which lapsed on failure to make the payment within the time therein stipulated. — Duff, J., took no part in the decision of the appeal. — Per Fitzpatrick, C.J. and Brodeur, J. — Questions which have not been raised or brought to the attention of the courts be- low ought not to be considered on an appeal to the Supreme Court of Canada. Gagnon V. B danger, liii., 204. 37. Warranty — Future rights — Hypothec xxxvi., 221. See Appeal. 38. Equitable mortgage — Mines and min- erals — Lease of mining lands — Sheriff's sale — Purchase by judgment creditor of mort- gagee — Registry laws — Priority — Actual notice — Lien for Crown dues paid as rent — C S. N. B. {190S), c. SO, s. 1S9, xxxvii., 517. See Mines and Mining. 1175 TITLE TO LAXD. 1176 39. Privileges and hypothecs — Tramway — Operation of highway — Immobilization iy destination — Sale of tramway hy sheriff as a "going concern" — Unpaid vendor -r- Lien on price of cars — .Pledge — Contract — Con- struction of statute, 3 Edw. VII. o. 91 (Que.) — Priority of claim — Coliocation and distribution — Arts. 379, 2000 C. C.—Art. 752 Mun. Code. Ahearn '\& Soper v. N. 7. Trusts, xlii., 267. See Privileges and Hypothecs. 40. Crown — Homestead and pre-emption rights — Unpatented Dominion lands — "Transfer" — Incumbrance — Charge to secure debts — Sanction of minister — Absolute nul- lity — 'Construction of statute — 60 & SI Vict, p. 29, s. 5; R. S. C. (1906) c. 55, s. UZ, xlii., 377. See Crown. 41. Mortgage — Manitoba "Real Property Act" — Power of sale — Special covenant — Islotice — Statutory supervision — Registered title — Equitable rights — Possession by mort- gagee — Limitation of action — Construction of statute— R. S. M., 1902, c. U8, s. 75 — "Real Property Limitation Act," R. S. M., 1002, c. 100, s. 20, xlv., 618. See Mortgage. 4. Inheritance, Successions, etc. 42. Win — Trust — Conditional devise.] — The property was devised by will as follows : "I give and bequeath to my beloved wife, Margaret Mclsaac, all and singular the pro- perty -of which I am at present possessed, whether real or personal or wherever sit- uate, to be by her disposed of amongst my beloved children as she may judge most beneficial for herself and them, and also order that all my just and lawful debts be paid out of the same. And I do hereby ap- point my brother, Donald Mclsaac, and my brother-in-law, Donald Mclsaac, tailor, my executors to carry out this my last will and testament." — Held, afiirmiug the judgment appealed from (38 N. S. Rep. 60) that the widow took the real estate in fee with power to dispose of it and the personalty whenever she deemed it was for tlie benefit of herself and her children, to do so. Mc- lsaac V. Beaton, xxxvii., 143. 43. Doweress — Prescription — Statute of Limitations — Heirs at law — Evidence — Parol admissions' — Will — Residuary de- vise.] — C. R., at the time of his death (1864), was the owner in fee of certain lands and died intestate, leaving him sur- viving his widow, M. R., but no issue. After his death the widow remained in possession and occupation by herself or her tenants up to her death, October 6th, 1881. By lease on the 3rd May, 1881, she demised the premises to the defendant O. for a term of five years and, at the time of her death, O. was in possession as tenant under this lease. The plaintiff was the devisee of the lands under the will of M. R. The defendant R. claimed to be one of the helrs- at-law of C. R. and procured O. to attorn to him as landlord. — Ileld, that the Widow remaining in possession of the lands of her husband after his death for a period of ten years, acquired a prescriptiva right to the fee as against the heirs-at-law. — Held, that admissions made by the doweress that she was bound to her husband's heirs to cut thistleb on the land, and it was her 'duty to take care of the property given her by the heirs, made to persons having no inter- est iri the property, were not sufficient evi- dence of an agreement with the heirs-at- law that she was occupying the land in the lieu of dower. — Held, that a will containing a residuary devise in the words : "All the rest and residue of my estate of which I shall be seized and possessed of or to Which I shall be entitled at the time of my de- cease" was sufficient to include lands the title to which at the time of the making of the will had not, but before the testator's death had, ripened into an estate in fee simple by virtue of the Statute of Limita- tions. Oliver V. Johnston (Cout. Dig. 1418), Cam. Cas. 338. 44. Right of appeal — Interest of appel- lant — Parties to action — Art. "i"? C. P. Q. — Sales of substituted lands — Will— Prohibi- tion against alienation — Arts, 252, 253a, 968 et seq. C. C. — -Res judicata, xxxv., 193. See Appeal. 45. Construction of will — Usufruct — Sub- stitution — Partition between institutes — Validating legislation — 60 Vict. c. 95 (Q.) — Construction gf statute — Restraint of aliena- tion — Interest of substitutes — Devise of pro- perty held by institute under partition — De- volution of corpus of estate es nature — Ac- cretion — Res judicata — Arts. 868, 948 C. C, xxxviii., 1. See Well. 5. Possession. 46. Crown Hands — Orant during adverse possession — Inquest of office — Information for intrusion — Possession — 21 Jac. I. c. 1^ (Im/p,)] — Adverse possession against the Crown for twenty years, under the provi- sions of the statute 21 Jac. I. c. 14 (Imp.) does not prevent the Crown from validly granting the same without first establishing title on an information for intrusion. Judg- ment appealed from (36 N. B. Rep. 260), reversed, Davies, J., dissenting. (Appeal to Privy Council dismissed, 47 Can. fjaz., 424.) Madaison v. Emmerson, xxxiv., 533. 47. Colourable title— Possession — Statute of Limitations — Evidence.] — The possession of a part of land claimed uilder colour of title is constructive possession of the whole which may ripen inter an indefeasible title if open, exclusive and continuous for the whole statutory period. — Carrying on lumbering operations during successive winters with no acts of possession during the remainder of each year does not constitute continuous possession. And it is not exclusive where other parties lumbered on the land contin- Uously or at intervals, during any portion of such period. Wood v. LeBlanc, xxxiv., 627. 48. Sea beaches — Servitude — Possession annale— Possessory action.] — ^The possession 11^ TITLE TO LAXD. 1178 necessary to entitle a plaintifE to maintain a possessory action must (in Quebec), be continuous and uninterrupted, peaceable, public and as proprietor for the whole period of a year and a""day immediately pre- ceding the disturbance complained of. Cou- ture V. Couture, xxxiv., 716. 49. Trespass — Right of action — Fences — Enclosure — Possession^ — The action was for trespass, but the question in dispute was, in realitiy, the title to the lands. The Supreme Court affirmed the judgment ap- pealed from (35 N. S. Rep. 462), which de- cided that the mere enclosure of the land of another, by the proprietor of the adjoining land, by putting up a fence for the purpose of protecting the lands of both parties against incursions of cattle, such fencing being made by mutual consent and arrange- ment to that end, could not have the effect of dispossessing the actual owner of the land enclosed nor prevent him from main- taining an action for trespass against an intruder thereon or to prevent any one using his land for purposes other than those for which it had been enclosed. Conway v. Bookman, xxxv., 185. 50. Conveyance in fee — Reservation of life estate — Ejectment.] — Heirs of life ten- ants deprived of benefit of statute. Dods v. McDonald, xxxvi., 231. See Title to Lajjd. 51. Limitation of actions — Unregistered ieed — Subsequent registered mortgage — Pos- session — Right of entry.] — R. T. In 1891. being about to marry W. T. and wishing to convey to him an interest in her land, exe- cuted a deed of the same to a solicitor, who then conveyed it to her and W. T. in fee. The solicitor registered the deed to himself, but not the other, forging on the same a certificate of registry, and he, in 1892, mort- gaged the land and the mortgage was duly registered. iR. T. and W. T. were in pos- session of the land all the time from 1891, and only discovered the fraud practised against them in 1902. In 1903 the mort- gagee brought action to enforce bis mortgage. — Held, affirming the judgment of the Court of Appeal (9 Ont. L. R. 105), Davies and Xesbitt, JJ., dissenting, that the legal title being in the solicitor from the time of the execution of the deed to him the Statute of Limitations began to run against him then and the right of action against the parties in possession was barred in 1901. (Re- versed by Privy Council, [1908] A. 0. 60.) McVity V. Tranouth, xxxvi., 455. 52. Statute of Limitations — Possession of land— Constructive possession — Colourable title.'] — McI. by his will devised sixty acres of land to his son charged with the main- tenance of his widow and daughter. Shortly afterwards the son with the widow and other heirs conveyed away four of the sixty acres and nearly thirty years later they were deeded to McD. Under a judgment against the executors of McI. the sixty acres were sold by the sheriff and fifty, including the said four, were conveyed by the purchaser to llel.'s son. The sheriff's sale was illegal under the Nova Scotia law. The son lived on the fifty acres for a time and then went to the United States, leaving his mother and sister in occupation until be returned twenty years later. During this time he occasionally cut hay on the four acres, which was only partly enclosed, and let his cattle pasture on it. In an action for a declaration of title to the four acres: — Held, that the occupation by the son under colour of title of the fifty acres was not constructive pos- session of the four which be had conveyed away and his alleged acts of ownership over which were merely intermittent acts of tres- pass, ilclsaac V. McDonald, xxxvii., 157. 53. Ownership — Artificial watercourse — Canal banks — Trespass — Possessory action —Bornage — Practice.]-r-The possessory ac- tion lies only in favour of persons in ex- clusive possession a, titre de propriMaire. — The ownership of a canal serving as a tail- race for a water-mill naturally involves the ownership of the banks of the canal and the right to make use thereof for the pur- pose of maintaining the tail-race in efficient condition. — In the present case, the bank of the canal had fallen in at a place adjoin- ing lands belonging to D., and the projec- tion thus formed bad been, for some years, occupied by him. A. made an entry for the purpose of removing this obstruction, and re-building a retaining wall to support the bank. In a possessory action by 6. : — Held, that as the original boundary had become obliterated the decision of the ques- tion of possession should be postponed until the limits of the canal bank had been re- established. Parent v. The Quebec North Shore Turnpike Road Trustees (31 Can. S. C. R. 556), followed. Delisle v. Arcand, xxxvii., 668. 54. Room in building — Adverse posses- sion — Statute of Limitations — Incidental rights — Implied grant — License or ease- ment.] — ^Possession of an upper room in a building supported entirely by portions of the story beneath may ripen into title thereto under the provisions of the Statute of Limi- tations. — I., one of several owners of land with a building thereon, sold his interest to a co-owner and afterwards occupied a room in said buUding as tenant for his business. The room was on the second story and in- side the street door was a lauding leading to a staircase by which it was reached. I. had the only key provided for this street door and always locked it when leaving at night. He paid rent for the room at first and then remained in possession without paying rent for twelve years. The annual tax bills for the whole premises were gen- erally, during that period, left in the room he occupied and were sent by him to the managing owner who paid the amounts. In an action to restrain the owners from interfering with his possession of said room and its appurtenances : — Held, reversing the judgment of the Court of Appeal (15 Ont. L. R. 286) and restoring with a modifica- tion that of the trial judge (14 Ont. L. R. 17 ) , Idington and JIaclennan, J J., dissent- ing, that I. had acquired a title under the Statute of Limitations to said room and to so much of the structure as rested on the soil to which he had acquired title. — Held, per Davies, J. He had also acquired a pro- prietary right to the staircase and the por- tions of the building supporting said room. — 1179 TITLE TO LAND. 1180 Per Fitzpatrick, C.J. and DufC, J. The Statute of Limitations does not as against the party dispossessed annex to a title ac- quired by possession incidents resting on the implication of a grant. I. had, therefore, acquired no rights in the supports. — Per Idington and Maclennan, JJ. The use of the landing and staircase was, at most, an easement and must continue for twenty years to produce the statutory title, and to give title to the supports there would have to be actual possession which was not the case here. Iredale v. Loudon, xl., 313. 55. Possession — Prescription — Interrup- tive acknowledgment — Evidence.] — ^The com- pany claimed prescriptive title to a part of the bed of a small river on which D., as the respondents' auteur, had been a riparian owner. D. had leased lauds on the banks of the river to the company which, it was alleged, included the property in dispute. The only evidence as to interruption of prescription consisted of a letter by the company to D. enclosing a cheque in pay- ment for "use of your interest^ in Cap Kouge River this year," with an indorsement by D. acknowledging receipt of the funds "with the understanding that the navigation of the river is not to be prevented." — Held, reversing the judgment appealed from (13 Ex. C. R. 116), Girouard and Idington, JJ., dissenting, that the memorandum was too vague to serve as an interruptive acknow- ledgment sufficient to defeat the title claimed by the company. Gap Rouge Pier, Wharf and Dock Go. v. Duohesnay, xliv, 130. 56. Foreshore — Title hy possession — Nature of possession — Disclaimei — Mvidence of title — Nullum Tempus Act.] — In proceed- ings by the Dominion Government for ex- propriation of land on the Miramiehi River the owner, T., claimed compensation for the part of the adjoining foreshore of which he had no documentary title. It was proved that in 1818 the original grantee had leased a part of the land and the privilege of erecting a boom for securing timber on the river in front of it ; that his successors in title had, by leasing and devising it, dealt with the foreshore as owners ; that for over forty years, from about 1840 the boom in front of it was maintained and used hy the owners of the land ; and that at low tide the logs in the boom would rest on the solum. — Held, reversing the judgment of the Exchequer Court (15 Ex. C. R. 177), Daviea and Idington, JJ., dissenting, that there was sufficient evidence of adverse possession of the foreshore by the owners of the ad- joining land for more than sixty years to give the present holder title thereto. — Per Anglin, J. — From a continuous use for more than forty years, which is proved, a prior ''.ke user may be inferred. Moreover, from the evidence of assertion of ownership and possession since 1818 a lost grant might, if necessary, be presumed. — Per Davies and Id- ington, JJ. — The placing and use of the boom was only incidental to the lumber busi- ness carried on at this place and the con- sent of the riparian owner thereto cannot be regarded as a claim of adverse possession. The presumption of lost grant was not pleaded and cannot be relied on ; moreover, a lost grant could not be presumed in the cir- cumstances. — ^On application by the Minister of Justice for a disclaimer of damages for the taking of the foreshore the Government of New Brunswick passed an Order-in-Conn- cil stating that the owner of the adjoining land taken claimed title to said foreshore ; that it had been used by tUe owners for boom- ing purposes and otherwise for more than sixty years ; that the Attorney-General was of opinion thdt whatever rights the province may have had were extinguished, and that no claim should be made by it to the said foreshore. — Held, per Duff, J.— This is an admission touching the title to the fore- shore by the only authority competent to make it, and is evidence against the Do- minion Government in the expropriation pro- ceedings ; that it is primd facie evidence of title by possession in T. ; and that there is nothing in the record to impair the strength of this primA facie case. Tweedie V. The King, lii., 197. 57. Adverse possession against Grown — "Nullum Tempus Act" — Interruption of possession — Information of intrusion— Judg- ment by default — Acknowledgment of title — "Real Property Limitations Act" (Ont.)] — A judgment by default, on information of intrusion against persons in possession of Crown lauds, which was never enforced, did not interrupt such possession and prevent it ripening into title under the "Nullum Tempus Act." — "The Real Property Limita- tions Act" of Ontario (C. S. U. C. c. 88, s. 15; R. S. O. [1914) c. 75, s. 14), pro- viding that an acknowledgment of title in writing shall interrupt the adverse posses- sion does not apply to possession of Crown lauds and such acknowledgment is not an interruption under the "Nullum Tempus Act." — The provision in the "Ontario Limi- tation of Actions Act" of 1902, making an acknowledgment apply to interrupt posses- sion of Crown lands is not retroactive or, if it is, it cannot apply to a case in which the adverse possession had ripened into title before it was passed. — Per Duff, J. — An in- trusion does not, in itself, deprive the Crown of possession, the occupation required to at- tract the benefit of the first section of the "Nullum Tempus Act," 9 Geo. III. c. 16, is not technically possession ; but lands are "held or enjoyed" within the meaning of that section where facts are proved which, in litigation between subject and subject, would constitute civil possession as against the subject owner. — The judgment of the Ex- chequer Court (16 Ex. C. R. 67), in favour of the Crown on information of intrusion was reversed, Fitzpatrick, C.J., holding that the Crown had failed to prove title, Iding- ton, J., that the claim was barred by th& negative clause of the first section of the "Nullum Tempus Act," and the other judges that the defendants had obtained title by operation of the "Nullum Tempus Act." Hamilton v. The King, liv., 331. 58. Injunction — Boundary — Riparian rights — Prescription. Gity of Hull v. Scott, Cout. Cas. '264. 59. Possessory action — Appeal, xxxvi., 23. See Action. 60. Trespass — Easement — Pullic way — Dedication — User — Prescription — Estoppel — "Law and Transfer of Property Act," R, 1181 TITLE TO LAND. 1183 S. 0., 1891, c. 119. Peters v. Sinclair, xlviii., 57. See Basement. 61. Trespass — Crown grant — Conflicting claims — Priority of title — Evidence. Hirtle V. Boehmer, 1., 264. 6. iREGISTEATIOrr. 62. Constitutional law — Imperial Acts in force in Yukon Territory — 2 & 3 Vict. c. 11 (Imp.)—R. S. C. c. 50 — Title to land — "Torrens System" — Transfer by registered owner^Fraud — Litigious rights — Notice of Us pendens — Irregular registration — Indorse- ments upon certificate of title — Construction of statute — "Land Titles Act, 1894" — Caveat —57 & 58 Vict. c. 28, s. 126 (D.)~61 Vict. c. 32,' s. 14 (D.) — Pleading—Objections taken — Yukon Ordinances, 1902, 0. 17 — Rules 113, 115, 117 — Waiver— Estoppel.^ — The provisions of the Imperial Act, 2 & 3 Vict, c. 11, in respect to the registration ot notices of litispendence and for the protection of bona fide purchasers pendente lite are of a purely local character and do not extend their application to the Yukon Territory by the introduction of the English law generally as it existed on the fifteenth of July, 1870, under the eleventh section of "North-West Territories Act," R. S. C. c. 50. — ^Uuder the provisions of "The Land Titles Act, 1904," section 126, a bond fide purchaser from the registered owner of land subject to the operation of that statute is not bound or affected by notice of litispendence which had been improperly filed and noted upon the folio of the register containing the certifi- cate of title as an incumbrance or charge upon the land. The exception as to fraud referred to in the 126th section of the A,ct means actual fraudulent transactions in which the purchaser has participated and does not include constructive or equitable fraud. The Assets Company v. Mere Roihi (21 Times L. R. 311), referred to and ap- proved. — In an action to set aside a con- veyance as made in fraud ,of creditors, the defendant desiring to meet the action by setting up that there was no debt due, and, consequently that no such fraud could exist, must allege: these objections in his pleadings. In the present case the defendant, having failed to plead such defence, was allowed to amend on terms, the Chief Justice dissent- ing. Syndicat Lyonnais du Klondyke v. Mc- Grade, xxxvi., 251. 63. Homestead lands — "Land Titles Act," 6 Edw. VII. c. 2-4; 8 Edw. VII. c. 29 (Sask.) — ■ Exemption from seizure — Regis- tered incumbrance — "Exemptions Ordin- ance," N. W. T., Con. Ord., 1898, 0. 27.]— Homestead lands, exempt from seizure under execution by the North-West Territories "Exemptions Ordinance," are not affected by any charge or incumbrance in conse- quence of the registration of writs of exe- cution against the homesteader under the provisions of the "Land Titles Act" of the Province of Saskatchewan, 6 Edw. VII. c. 24, s. 129, as amended by 8 Edw. VII. c. 29, s. 10 ; consequently, the transferee of such lands under conveyance from such homesteader acquires them free and clear of any incumbrance resulting from the regis- tration of such execution. Judgment ap- pealed from (3 Sask. L. R. 280), affirmed. Northwest Thresher Co. v. Fredericks, xliv., 0I8. 64. "Torrens System" — Priority of right — Registration — Caveat — Notice — Con- struction of statute^Saskatohewan "Land Titles Act," 6 Edw. VII. c. 24— Equities be- tween purchasers — Assignment of contract — Conditions — Right enforceable against registered owner.] — Under the provisions of the Saskatchewan "Land Titles Act" (6 Edw. VII. c. 24), the lodging of a caveat in the laud titles office in which the title to the lands in question is registered, pre- vents the acquisition of any legal or equit- able interest in the lands adverse to or in derogation of the claim of the caveator. — ^A company, being registered owner of lands under the Act, entered into a written agree- ment to sell them to P., who assigned his interest In the contract to G., who then agreed to transfer his equitable interest, thus acquired, to A. iSubsequently, without knowledge of A.'s interest, McK. & B. ac- quired a like interest from G. A caveat claiming interest in the lands was then lodged by A., in the proper land titles office, and, without inquiry or actual notice of the registration of the caveat, McK. & B. afterwards obtained the approval of the company to the assignment which had been made to them. In an action for specific perfprmance. — ffeld, per Davies, Idingtdn, Anglin and Brodeur, JJ., that, as the pur- chasers from G. were on equal terms as to equities, A. had priority in point of time at the date when his caveat was lodged ; that such priority had been preserved by the registration of the caveat, and that the subsequent advantage which would, other- wise, have been secured by the company's approval of the assignment to McK. & B. was postponed to any equitable right which A. might have to a conveyance. And, further, per Idington, J., that, irrespective of the lodging of the caveat, A. had prior equity to the subsequent assignees. — The agreement by the company provided that no assign- ment of the contract should be valid unless it was for the whole of the purchaser's in- terest and was approved by the company, and also that the assignee should become bound to discharge all the obligations of the pur- chaser towards the company. Until the time of the approval of the assignment to McK. & B., none of these conditions had been complied with. — Held, per Davies, Id- ington, Anglin and Brodeur, JJ., that the conditions in restriction of such assignments of the original contract could be invoked only by the company. — Held, per Duff, J., dissenting, that, as the rights of G. against the company had never become vested in A., according to the provisions of the contract, he had acquired no enforceable right against the company, the registered owner of the lands, and, consequently, he had no legal or equitable interest in them which could be protected by caveat. — Judgment appealed from (4 Sask. L. R. Ill), affirmed, Duff, J., dissenting. McKillop & Benjafield v. Alex- ander, xlv., 551. 65. "Land Titles Act," R. S. Sask., 1909, c. 41 — Fraud — Cancellation of certificate of 1183 TITLE TO LAND'. 118-t title-T—Appeal — Findings of fact — Review iy Appellate Court.'\ — The appellant obtained a transfer of lands which had been exe- cuted by the registered owner to him through some mistake or inadvertence, and, although he was aware that these lands had been previously transferred by the beneficial owner to the respondent, he registered the transfer and thereby secured a certificate of title therefor in his own name as the owner. — Held, afiirming the judgment ap- pealed from (1 West. W. R. 148), that the certificate of title issued to the ap^pellant should be cancelled, under the provisions of the "Land Titles Act" (R. S. Sask., 1909, c. 41), as having been fraudulently obtained. — Per Anglin, J. — Where error in the find- ings of the trial judge can be demonstrated wholly by argument it is the duty of an ap- pellate court to review questions of fact even where those findings have been against fraud, and upon oral testimony. Ooghlan V. Gumlerland ([18981 1 Ch. 704); The "aairlooh" ([1899] 2 Ir. R. 1), and Kkoo Sit Eoh V. Lim Thean Tong ( [1912] A. C. 323), followed. Annable v. Coventry, xlvi., 573. 66. Married woman — Separate property — Liability for debts of husband — Registry joK, — "Real Property Act" — "Married Wo- men's Act" — Conveyance during coverture, x\., 334. See Makeied Woman. 67. Sale of standing timber — Registration of real rights — Ownership — Distinction of things — Movables and immovables-^Priority of title, xli., 105. See Registey Laws. 68. Crown lands — Colonization — Location ticket — Transfer by locatee — Sale — Issue of letters patent — Registry laws -v- Notice — Arts. US1, lJi88, 208$, 208J,, 2085, 2098 C. C, 1., 311. See Ceown Lands. 69. Manitoba "Real Property Act," ss. 100, 130 — Agreement for mortgage — Caveat — "Interest in lamd" — Registration subject to incumbrance — Indorsement on instrument registered, 1., 1. ,See R'EGisTEY Laws. 7. Teusts. 70. Title to land — Conveyance upon con- dition — Public park — Trust — Forfeiture — Assignment of reversionary interest — Decree in favour of 'assignee — Champertous agree- ment, ^ — C conveyed lands to the city for the purpose of a park or public recreation place with conditions prohibiting their use for certain specified purposes and, within a time limited, that the city should clear the land of stumps and roots, ploUgh, level and harrow the same according to the natural contour of the ground, seed it down, build a road to it and "maintain the same in such fit, proper and good condition, as aforesaid." In an action by the assignee of C. for a declaration that the city held the lands in trust and for reconveyance of the same to him, under the proviso on breach of conditions, it appeared that about oner- six'th of the land had been left in its. natural state, "virgin forest," but that the remainder had been cleared and made fit for "ordin- ary athletics, Scotch athletics" although not suitable for games or sports requiring "nice" level ground. It appeared, also, that the road has been built, but that, as the population did not increase in the vicinity, the ground was not in demand for athletics or exhibition purposes, they had not been used and had become somewhat covered with undergrowth of chaparal and bracken. — Held, Sedgewick, J., dissenting, affirming the judgment appealed from, that there was no such breach of the trusts as could war- rant a declaration of forfeiture under the provisoes of the deed of conveyance. — Per Killam, J. — Had there been a \ breach of trust, the resulting forfeiture could have been decreed in favour of the assignee of the grantor. Clark v. City of Vancouver, XXXV., 121. 71. Trust — Interest in mining areas — Sale by trustee — Recovery of proceeds of sale — Agreement in writing — Statute of Frauds— R. 8. N. S. (1900) c. IJfl, ss. k and 7 — Part performance — Acts referable to contract — Evidence — Pleading.'i — M. trans- ferred to 0. a portion of an interest in min- ing areas which be claimed was held in trust for him by the defendant. In an ac- tion by C. claiming a share in the proceeds of the sale thereof, no deed or note in writ- ing of the assignment was produced as re- quired by the fourth section of the Nova Scotia Statute of Frauds, and there was no evidence that, prior to the assignment, there had been such a conversion of the interest as would take away its character as real estate. — Held, that the subject of the alleged assignment was an interest in lands within the meaning of the Statute of Frauds and not merely an interest in the proceeds of the sale as distinguished from an interest in the areas themselves, and, consequently, that the plaintiff could not recover on account of failure to comply with that statute. — It was shewn that, on settling with interested parties, the defendant had given M. a bond for $500, as his share of what he had re- ceived on the sale of the areas.-^HeW, that, as this act was not unequivocally and in its own nature referable to some dealing with the mining areas alleged to have been the subject of the agreement, it could not have the effect of taking the case out of the operation of the Statute of Frauds. Mad- dison v. Alderson (8 App. das. 467), re- ferred to. — ^Judgment appealed from (41 N. S. Rep. 110), reversed. McNeil v. Corbett, xxxix., 608. 72. Syndicate to promote joint stock com- pany — Partnership — Trust agreement — Con- struction of contract — Administration by majority of partners — Lapse of time limit — Specific performance, xxxv., 645^ See Specific Perfoemancb. 8. Other Matters. 73. Ownership — Lease — Sheriff's sale — Insurable interest — Fire insurance — Trust — Beneficiary — Principal and agent — Fraudu- lent contrivances — Estoppel.] — The lessor of 1185 TITLE TO LAND. llS-6 real estate insured the leased property "in trust" and notified the insurers that the lessee, his son, was the real beneficiary. The lessee paid all the premiums and, the pro- perty having been seized in execution of a judgment against the lessor, the lessee pur- chased _ at the sheriff's sale and became owner in fee. He afterwards increased the insurance, the insurer acknowledging, in the second policy, the existence of the first in his favour. The property having been destroyed by fire payment of the amount of the first policy to the lessee was opposed by a judgment creditor of the lessor and the money attached in the possession of the company. — Held, that the lessee having had an insurable interest when the first policy issued and being, when he acquired the fee and when the loss occurred, the only person having such interest, he was entitled to the payment of the amount of the policy insured upon the application of the lessor, — Held, also, that even if the lessor knew that his father was embarrassed at the time he took the lease and when he pur- chased the property at the sheriff's sale,, that would not make the transaction fraudulent as against the father's creditors. — ^A credi- tor who was a party to the action against the lessor in which the property was sold in execution subject to the lease and who did not oppose such sale could not, after- wards, contest payment of the amount of the policy on the ground of fraud. Langelier v. Charleiois, xxxiv., 1. 74. Appeal — Time for bringing appeal — Delays occasioned hy the Court — Jurisdic- tion — Controversy involved.] — An action o« pHitoire was brought by the City of Hull against the respondents claiming certain real property which the Government of Que- bec had sold and granted to the city for the sum of $1,000. The Attorney-General for Quebec was permitted to intervene and take up the fait et cause of the plaintiffs without being formally summoned in war- ranty. — Held, that as the controversy be- tween the parties related to a title to real estate, both appeals would lie to the Su- preme Court of Canada notwithstanding the fact that the liability of the intervenant might be merely for the reimbursement of a sum less than $2,000. Attorney-General for Queiec and the City of Hull v. Scott, xxxiv., 282. 75. Constitutional law — Conflict of laws — Legislative jurisdiction — Construction of statute — Retroactive effect — Redemption of land sold for taxes — Vesting of title — -Inter- est in lands — Equitable estate — N. W. T. Ord. 1896, c. 2; 1900, c. 10; 1901, cc. 12, 29 and 30—57 rf 58 Viet. c. 28 (D.) — Practice — Form of order.] — The provisions of the N. W. T. Ordinances, c. 2, of 1896, vesting titles of lands sold for taxes in the purchaser forthwith upon the execution of the transfer thereof free of all charges and incumbrances other than liens for existing taxes and Crown dues, are inconsistent with the provisions of the 54tb, 59th and 97th sections of the "Land Titles Act, 1894," and, consequently, pro tanto, ultra vires of the Legislature of the North-West Territories. Sedgewick and Killam, JJ., contra. — The second .section of the N. W. T. Ordinance, f 7u °} ■'■^V-^' providing for an extension ot the time for redemption of lands sold for taxes, deals with procedure only and is re- trospective and saves the rights of mort- gagees prior to the tax sale so as to permit them to come in as interested persons and redeem the lands. Sedgewick and Killam JJ., conJtra. The Ydun (15 Times L. E 361), referred to. In re Kerr (5 Terr. L. R. 297), overruled.— Per Sedgewick and Killam, J J. The provisions of the said s. 2 cannot operate retrospectively so as to af- fect cases in which the transfer had issued and the right of redemption was gone as in the present case. Vorth British Canadian Investment Co. v. Trustees of St. John School District N. W. T., xxxv., 461. 76. Tenant hy sufferance — Use and occu- pation of lands — Art. 1608 C. C— Promise of sale — Vendor and purchasei — Reddition de compte — Actio ex vendito — Practice.] — The action for the value of the use and oc- cupation of lands does not lie in a case where the occupation by sufferance was be- gun and contained under a promise of sale ; in such a case the appropriate remedy would be by action ex vendito or for reddition de compte. Cantin v. BiruM, xxxvii., 627. 77. Specific performance — Tender for land — Agreement for tender — One party to ac- quire and divide with other — Division by plan — Reservation of portion of land from grant.] — By agreement through correspon- dence, the G. T. E. Co. was to tender for a triangular piece of land offered for sale by the Ontario Government containing 19 acres and convey half to the C. P. R. Co., which would not tender. The division was to be made according to a plan of the block of land with a line drawn through the centre from east to west, the C. P. R. Co. to have the northern half. The G. T. K. Co. ac- quired the land, but the Government re- served from the grant two acres in the northern half. In an action by the C. P. R. Co. for specific performance of the agree- ment : — Held, affirming the judgment of the Court of Appeal (14 Ont. L. R. 41), Mac- lennan and Duff, JJ., dissenting, that the C. P. R. Co. was entitled to one half of the land actually 'acquired by the G. T. R. t)o. and not only to the balance of the north- ern half as marked on the plan. — The Court of Appeal directed a reference to the master in case the parties could not agree on the mode of division. — Held, that such reference was unnecessary and the judgment appealed against ' shpuld be yaried in this respect. Grand Trunk Ry. Go. v. Canadian Pacific Ry. Co., xxxix., 220. 78. Crown lands — Holders of location ticket — Prior right to mining rights — Privi- lege reserved to "proprietor of the soil" — • Construction of statute — R. S. Q. (1888) ss. 1269, lUO, IW; 55 d 56 Vict. c. 20 (Que.)] — The expression "proprietor of the soil" in s. 1441 of the Revised Statutes of Quebec. 1888, as amended by 55 & 56 Vict, c. 20, read in connection with s. 1269, Rev. Stats. Que., 1888, is not intended to de- signate the holder of a location ticket, and, consequently, persons hdlding Crown lands, scT).—38 1187 TITLE TO LAND. 1188 merely as locatees, have no vested prefer- ential rights to grants from the Crown of the mining rights therein, under ss. 1440 and 1441 of the .Revised Statutes of Quebec, 1888, as amended by the "Act to amend and fonsolidate the Mining Lavy," 55 & 56 Vict, c. 20 (Que,). Green v. Blackburn, xl., 647. 79. Lease for years — Possession hy suh- tenant — Purchase at sheriff's sale — Adverse occupation — Evidence — Conveyance of rights acquired — Compromise — Waiver — Estoppel.] — The court held that the acceptance of a deed of compromise in respect to the tenure of real property, which excluded certain lands, estopped the appellant from any claim for compensation for the expropriation of lands forming part of the excluded area. tiheets V. Tait, Gout. Cas. 158. 80. Expropriation of land — Statutory authority — Manufacturing site — Survey ■ — Location — Trespass, xxxiv., 394. See ExpROPBiATioN. 81. Appeal — Jurisdiction — Petitory action — Bornage — Surveyor's report — Costs — Order as to location of boundary line ■ — Execution of judgment, xxxiv., 617. See Boundary. 82. Declaratory decree — Cloud oyi title — Injunction, xxxv., 80. See Practice. 83. Negligence — Electric lighting — Wires on public highway — Proximity to bridge — Injury to child — Dedication, xxxviii., 27. See Negligence. 84. Placer mining — Disputed title — Tres- pass pending litigation — Colour of right — In- vasion of claim — Adverse acts— Sinister in- tention — Conversion — Blending materials — Accounts — Assessment of damages — Miti- gating circumstances — Compensation for necessary expenses — Estoppel — Standing-by — Acquiescence, xxxviii., 516. See Mines and Mining. 85. Possessory action — Trouble de posses- sion — Right of action — Actio negatoria ser- vitutis — Trespass — Interference with water- course — Agreement for user — Expiration of license by non-use — Tacit renewal — Cancel- lation of agreement — Recourse for damages, xxxix., 81. See Action ; Practice. 86. Rights appurtenant to dominant tene- ment— ^Construction of ice-house — Change in natural conditions — Flooding of servient tenement — Aggravation of servitude — 7)?- junction — Damages — Abatement of nuisance —Arts, m, 501, 5J,9 C. C, xxxix., 103. See Nuisance. 87. Liquidation of insolvent corporation — Distribution and collocation — Privileged claim — Expenses for preservation of estate — Fire insurance premium — Notice — Arts. 311, 373, J,19, 10Ji3-10J,6, 1201, 1994, i996, 2001, 200 C. C, xxxix., 318. See Company. 88. Defamation — Printing report of ghost haunting premises — Slander of title — Fair comment — Disparaging property — Special damages — Evidence — Presumption of malice — Right of action, xXxix., 340. See Slander of Title. 89. Rivers and streams — Crown domain — 'Flottage" — Driving loose logs — Public servitude — Riparian ownership — Action pos- sessoire—Arts. 400, 503, 501, 2192 C. C. — Art. 1064 C. P. Q., xl., 1. See Rivers and Streams. 90. Mines and minerals — Hydraulic regu- lations — Application for mining location — Duties imposed on Minister of the Interior — Status of applicant — Vested rights — Con- tract binding on the Crown, xl„ 258. See Mines and JIixing. 91. Trespass — Conventional line — Boun- dary — Agreement at trial — Pleading — Practice, Cam. Cas. 171. See Trespass. 92. Easement appurtenant — User of lane — Prescription — Agreement for right of way — Construction of contract — Practice, Cam. Cas. 352. See Easement. 93. Appeal — Jurisdiction — Action posses- soire — Demolition of works — Matter in con- troversy, Cout. Cas. 141. See Appeal. 94. Municipal corporation — Reservation for highway — Opening by-road — Damages, Cout. Cas. 210. See HiOHWAT. 95. Appeal — Jurisdiction — Supreme Court Act — Duty or fee — Interest in land — Future rights, xli., 35. See Appeal. 96. Appeal — Actio pauliana — Controversy involved — Supreme Court Act, s. .^6, xli., 80. See Appeal. 97. Servitude — Construction of deed — Purchase of dominant atid servient tene- ments — Unity of ownership — Extinction of servitude — Revival by sale of dominant tene- ment — Effect of sheriff's sale — -Purgation of apparent servitude — Reference to former deed creating change — Lost deed — Evidence, xli., 217. See Servitude. 98. Pre-emption of agricultural land — B. C. Land Act — Water records — Appurten- ances, xli., 286. See Irrigation. 99. Easement — Private way — Unity of ownership — Subsequent severance — Revi- val of easement — Reservation. McClellan v. Powassan Lumber Co., xlii., 249. See Easement. 100. Construction of statute — "Alberta Local Improvement Act" — Assessment and 1189 TORREXS SYSTEM/ 1190 taxation — Constitutional law — Railway aid — Land subsidy — Crown lands — Interests of private owner, xlv., 170. See Statute. 101. Mining Act — Grant of mining land — Reservation of pine timber — Right of grantee to cut for special purposes — Tres- pass — Cutting pine — Right of action xlvi., 45. See Mining Laws. 102. Appeal — Jurisdiction — Fraudulent conveyance — Statute of Elizabeth. Bateman V. Scott, llii., 145. See Appeal. TOLLS. 1. Appeal — Jurisdiction — Future rights — Toll-bridge — Exclusive limits — Infringement of privilege — Matter in controversy.] — The plaintiff's action was for $1,000 for damages for infringement of his toll-bridge privileges, in virtue of the Act, 58 Geo. III. e. 20 (U C), by the construction of another bridge within the limit reserved, and for the de- molition of the bridge, etc. The judgment appealed from dismissed the action. On a motion to quash the appeal : — Beld, that the matter. in controversy affected future rights and, consequently, an appeal would lie to the Supreme Court of Canada. GalarneaM V. Guilbault (16 Can. S. C. R. 579) and Chamberland v. Fortier (23 Can. S. C. R. .371), followed. Rouleau v. Pouliot, xxxvi., 26. 2. Construction of statute — Toll-bridge — Franchise — Exclusive limits — Measurement of distance — Encroachment — 58 Geo. III. c. 20 (L.O.).]— The Act, 58 Geo. III. c. 20 (L.C.) authorized the erection of a toll- ■ bridge across the River Stcbemin, in the Parish of Ste. Claire, "opposite the road leading to Ste. Therfese, or as near thereto as may be, in the County of Dorchester," and by s. 6, it was provided that no other bridge should be erected or any ferry used "for hire across the said River Etchemin, within half a league above the said bridge and below the said bridge." — Held, Nesbitt and Idington, JJ., dissenting, that the statute should be construed as intending that the privileged limit defined should be measured up-stream and down-stream from the site of the bridge as constructed. — Per Nesbitt and Idington, JJ., that there was not any expression in the statute shewing a contrary intention and, consequently, that the dis- tance should be measured from a straight line on the horizontal plane ; but— per Id- ington, J., in this case, as the location of the bridge was to be "opposite the road leading to Ste. Therfese,'' and there was no proof that the new bridge complained of was within half a league of that road, the plaintiff's action should not be maintained. Rouleau v. Pouliot, xxxvi., 224. 3. Mandamus — Driving timber — Order to fix tolls — Past user of stream — River im- provements — Appeal — R. S. O. [189T] c. U2, s. 13.]— By R. S. O. [1897] c. 142, s. 13, the owner of improvements in a river or stream used for floating down logs may obtain from a district judge an order fixing the tolls to be paid by other parties using such improvements. On application for a writ of mandamus to compel the judge to - make such an order -.—H eld, affirming the judgment of the Court of Appeal (16 Ont. h. it. 21), Davies, J., dubitante, and Idington J., expressing no opinion, that such an order had effect only in case of logs floated down the river or stream after the improvement was made. — Held, per Idington, J. — As s. 15 gives the applicant tor the order an appeal from the judge's refusal to make it manda- mus will not lie. — Held, per Duff, J. — The mandamus could issue if the judge had jur- isdiction to make the order though he re- fused to do so in the belief that a prior decision of a Divisional Court was res judicata as to his power. The C. Beck Manufacturing Go. v. Valin and The Ontario Lumber Co., xl., 523. 4. Grand Trunk Railway of Canada — Pas- senger tolls — Third class fares — Construc- tion of statutes — Repeal — 16 Vict. c. 37, s. 3 (Can.) — Amendments by subsequent rail- way legislation, xxxix., 506. See Railways. 5. Construction of statute — "Railway Act" — Spur line to industry — Rebate from tolls— R. S. 66, 1906, c. 37, s. 226. G. T. R. V. Hepworth Silica Pressed Brick Co., li., 81. See Railways. 6. Construction of statute — "Railway Act" — Spur line to industry — Rebate from tolls— R. S. C. [1906] c. 37, ,. 226, li., 81. See Railway. "TOKRENS S-ySTEM." 1. Title to land — "Land Titles Act," R. 8. Sask., 1909, c. 41 — Fraud — Cancellation of certificate of title — Appeal — Findings of fact — Review by Appellate Court.] — The appel- lant obtained a transfer of lands which had been executed by the registered owner to him through some mistake or inadvertence, and, although he was aware that these lands had been previously transferred by the benefi- cial owner to the respondent, he registered the transfer and thereby secured a certificate of title therefor in his own name as the owner. — Held, aflirming the judgment ap- pealed from (1 West. W. R. 148), that the certificate of title issued to the appellant should be cancelled, under the provisions of the "Land Titles Act" (R. S. Sask., 1909, c. 41), as having been fraudulently obtained. Amiable v. Coventry, xlvi., 573. And see Title to Land. See "Land Titles Act, 1894" ; Real Pbo- PEBTY Act. 2. Homestead lands exemption from seiz- ure, xliv., 318. See Registry Laws. 3. Sale for delinquent taxes — Tax sale deed — Premature' delivery — Statutory auth- ority — Condition precedent — Evidence — Pre- sumption — Curative enactment — Certificate of title (B.C.). Heron v. Laloiide, liii., 503. See Assessment and Taxation. 1191 TEADE MAEKS. 1192 TORT. 1. Operation of machinery — Continuing nuisance — Negligence — Droits du voisinage — Viirations, smoke, dust, etc. — Series of torts — Statutory franchise — Permanent in- jury — Abatement of nuisance — Prospective damages — Mode of assessing damages— lAmi- tations of actions — Prescription of actions j» tort— Arts. 377, 379, S80^ 2261 0. C, xxxvi., 329. See Nuisance. 2. Negligence — Employee of Crown — Com- mon employment ■< — Defence iy Grown — Workmen's Compensation Act, xxxvi., 462. See Negligence. 3. Watercourses — Riparian rights — Ex- propriation — Trespass — Diversion of natural flow — Injurious aifection — Damages — Execu- tion of statutory powers — Arbitration — In- junction — Mandamus — Construction of stat- ute— 59 Vict. c. U (,N.8.), xxxvii., 464. See EivBBS and Streams. 4. Constitutional law — Construction of statute — "Crown Procedure Act" — R. S. B. C. c. 51 — Duty of responsible minister of the Crown — Refusal to submit petition of right — Tort — Right of action — Damages — Pleading — Practice — Withdrawal of case from jury — New trial — Costs, xxxix., 202. See Action. 5. Negligence of fellow servant — Operation of railway — Defective switch — Public work — Liability of Crown — Right- of action — Ex- chequer Court Act, s. i6(o) — "Lord Gamp- bell's Act" — Art. 1056 G. C, xL, 229. ' See Negugence. And see Damages ; Negligence. 6. Municipal corporation — Building by- law — Dangerous constructions — Abatement of nuisance — Condition precedent — Notice — Order to repair — Demolition of structure — Trespass ■ — Forcible entry — Damages — Construction of statute — Montreal city charter, xliv., 579. See MtTNiciPAL Corporation. TRADE AND COMMERCE. Constitutional law — Lemdative jurisdic- tion — "Early closing bylaw' — Municipal affairs — Property and civil rights — Local and private matters — Regulation of trade and com/merce. Montreal v. Beauvais, xlii., 211. See Constitutional Law. TRADE COMBINATION. Contract — Public policy — Restraint of trade — Combination — Conspiracy — Construc- tion of staiute — "Criminal Code," s. 498 — Words and phrases, "unduly" preventing competition, etc., xlvi., 1. See Contract. TRADE CUSTOM. 1. Fire insurance — Contract of re-insur- ance — Conditions of contract — "Rider" to policy — Limitations of actions — Commence- ment of prescription — Art. 2236 C. O., xxxv., 208. See iNStTBANOE, FlEB. 2. Contract — Sale of goods — Delivery, xxxv., 274. V See Contract. TRADE FIXTURES. Mining lease — Prospector's license — Test- ing machinery — Annexation to freehold — Trade fixture — Fi. fa. de bonis — Sale under execution.] — ^The licensees of a mining area in Nova Scotia, erected a stamp mill on wild lands of the Crown, for the purpose of testing ores. All the various parts of the mill were placed in position, either resting by their own weight on the soil or steadied by bolts, and the whole installation could be removed without injury to the freehold. — Held, that the mill was a chattel or, at any rate, a trade fixture removable by the licensees during the tenure of their le^se or license, and, consequently, it was subject to seizure and sale under a.n execution against goods. Judgment appealed from (36 N. S. Rep. 395), affirmed, but for dif- ferent reasons. — (Leave to appeal to 'Privy Council refused, 17th May, 19C6. ) Liscombe Falls Gold Mining Co. v. Bishop, xxxv., 539. TRADE MARKS. 1. Infringement — Inventive term — Coined word — Exclusive use — Colourable imita- tion — Common idea — Description of goods^r Deceit and fraud — Passing-off goods.] — The hyphenated coined words "shur-on" and "staz-on"i are not purely inventive terms, but are merely corruptions of words de- scriptive of the goods (in this case, eye- glass frames) to which they were applied, intending tbem to be so described, and, therefore, they cannot properly be the sub- ject of exclusive use as trade-marks. A trader using the term "sta-zon" as descrip- tive of such goods, is not guilty of infringe- ment of any rights to the use of the term "shur-on" by another trader as his trade- mark, nor of fraudulently counterfeiting similar goods described by the latter term ; nor is such a use of the former term a colourable imitation of the latter term cal- culated to deceive purchasers, as the terms are neither phonetically nor visually alike. — The judgment appealed from (13 Ont. L. R. 144 ) , was affirmed. Kirstein Sons & Co. v. Cohen Bros., xxxix., 286. 2. Sale of railway ties—rDelivery — Bank Act lien — Timher marks. Gout. Cas. 266. See Lien. 3. "Buster Brown" — Validity of registra- tion.] — The term "Buster Brown" or "Buster Brown and Tige" for use as the title to a comic section of a newspaper can- not be registered as a trade-mark. — The 1193 TEAMWAYS, 1194 judgment appealed from (12 Ex. O. R. 1), was affirmed, Davies and Duff, JJ., dissent- ing. New York Herald Co. v. Ottawa Cit- izen Co., sli., 229. 4. Geographical name — Right to register — Interference.] — A manufacturing company in the United States adopted the word "Bucyrus,"' the name of a town in Ohio, as a trade name to designate their goods, but did not register it as a trade-mark nor protect their manufactures by patent. They sold their goods in the United States, and Canada for many years, and they became well-known as "Bucyrus" manufacturers. — Held, affirming the judgment of the Exche- quer Court (14 Ex. C. R. 35), that the company was entitled to register the word "Bucyrus" in Canada as a trade-mark for use in connection with such manufactures. — A Canadian company for some years manu- factured and sold "Bucyrus" goods as agent for the makers thereof, and built up a good business for the same ^ in ^Canada. When their agency terminated they sold similar goods of their own manufacture under the name of "Canadian Bucyrus,'' which they registered as their trade-mark for such goods. — Held, affirming the judgment below, that such trade-mark should be expunged Trom the register. Canada Foundry Co. v. Bucy- rus Co., xlvii., 484. 5. Registration — Rectification of register — Jurisdiction of Exchequer Court — Con- struction of statute — "Trade Mark and De- sign Act," R. S. C, 1906, c. 71, ss. 11, IS, IS, 42 — "Exchequer Court Act," R. . S. C, 1906, c. UfO, s. 23.] — Under the provisions of ss. 11, 12, 13 and 42 of the "Trade Mark and Design Act," R. S. C, 1906, c. 71, and the twenty-third section of the "Ex- chequer Court Act," R. S. C, 1906, c. 140, the Exchequer Court of Canada has juris- diction to order the rectification of the register of trade marks, at the suit of any persoii aggrieved, notwithstan^Jing that the matter has not been referred to the court by the Minister under the provisions of the "Trade Mark and Design Act," Duff, J., dissented. — The judgment appealed from (15 Ex. C. R. 265), was affirmed. Bergeron, Whissell <& Co. V. Joukopings, li., 411. TKAMAVAYS. 1. Municipal' franchise — Operation of tramway — Suburban lines — Earnings outside municipal limits — Construction of contract — Payment of percentage — Blended accounts — Estimation of separate earnings.] — The City of Montreal called for tenders for the establishment and operation of an electric passenger railway, within its limits, in ac- cordance with specifications and, subse- quently, on the 8th of March, 1893, entered into a contract with a company then operat- ing a system of horse tramways in the city which extended into adjoining municipalities. The contract granted the franchise for the period of thirty years from the 1st of Aug- ust, 1892, and one of its clauses provided that the company should pay to the city annually, during the term of the franchise, "from the 1st of September, 1892, upon the total amount of its gross earnings arising from the whole operation of its said rail- way, either with cars propelled by electricity or with cars drawn by horses" certain per- centages specified, according to the gross earnings from year to year. Upon the first settlement, on the 1st of September, 1893, the company paid the percentage without any distinction between earnings arising be- yond the city limits and those arising within the city, but, subsequently, they refused to pay the percentage except upon the esti- mated amount of the gross earnings arising within the city. In an action by the city to recover the percentage upon the gross earnings of the tramway lines ■ both inside and outside of the city limits: — Held, re- versing the judgment appealed from, the Chief Justice and Killam, J., dissenting, that the city was entitled to the specified percentage upon the gross earnings of the company arising from the operation of the tramway both within and outside of the city limits. — (Reversed by Privy Council [19061 R- C. 100). City of Montreal v. Montreal St. Railway Co., xxxiv., 459. 2. Construction of railway — Injunction — Interested party — Public corporation — Pub- lic interest — Lapse of powers — "Railway" or "Tramway" — Local territory ■ — Invalid contract — Public policy — Dominion and Que- bec Railway Acts — General advantage of Canada — Municipal Code — Limitations of powers.] — Per Sedgewick and Killam, JJ.— A company having power to construct a railway within the limits of the munici- pality has not such an interest in the muni- cipal highways as could entitle it to an in- junction prohibiting another railway com- pany from constructing a tramway upon such highways with the permission of the municipality under the provisions of article 479 of the Quebec Municipal Code. The municipality has power, under the provisions of the Municipal Code, to authorize the con- struction of a tramway by an existing cor- poration notwithstanding that such corpora- tion has allowed its powers as to the con- struction of new lines to lapse by non-user within the time limited in its charter. — Per Girouard and Davies, JJ. A railway com- pany which has allowed Its powers as to construction to lapse by non-user within the time limited in its charter and which does not own a railway line within the limits of a municipality where such powers were granted has no interest sufficient to maintain an injunction prohibiting the con- struction therein of anotlier railway or tram- ' way. Where a company subject to th« Do- minion Railway Act, with powers to con- struct railways and tramways, has allowed its powers as to the construction of new lines to lapse by non-uSer within the time limited, it is not competent for it to enter into an agreement with a municipality for the construction of a tramway within the municipal limits under the provisions of article 479 of the Quebec Municipal Code. Montreal Park and Island Railway Co. v. Chateauguay & 'Northern Railway Co., xxsv., 48. And see Railways. 3. Negligence — Dangerous works — Ordin- ary precautions — Employer and employee — Knowledge of risk — -Contributory negligence — Voluntary eayposure to danger.] — An em- ployee carrying on hazardous works is obliged 1195 TEAMWAYS, 1196 to take all reasonable precautions, commen- surate with the danger of the employment, for the protection of employees and, where this duty has been neglected, the employer is responsible in damages for injuries sustained by an employee as the direct result of such omission. Lepitre v. The Citizens Light and Power Company (29 Can. S. C. K. 1), re- ferred to by Nesbitt, J. — In such a case it is not sufficient defence to shew that the person injured had knowledge of the risks of his employment, but there must be such knowledge shewn as, under the circum- stances, leaves no doubt that the risk was voluntarily incurred and this must be found as a fact. Montreal Park & Island Railway Co. V. McDougall, xxxvi., 1. 4. Negligence — Trial — Finding of jury — Exercise of statutory privilege.] — Where a street car company has by its chartei- privi- leges in regard to the removal of snow from its tracks and the city engineer is given power to determine the condition in which the highway shall be left after a snow storm, a duty is cast upon the company to exercise its privilege in the first instance in a rea- sonable and proper way and without negli- gence. Mader v. Halifax Electric Tramway Co., xxxvii., 94. 5. Contract — Breach of conditions — Liqui- dated damages — Penalty — • Cumulative remedy — Operation of tramway — Construc- tion and location of lines — Use of highways — Car service — Time-tables — Municipal con- trol — Territory annexed after contract — Abandonment of monopoly — 55 Vict. c. 99 (Ont.) .] — Except where otherwise specially provided in the agreement between the To- ronto Railway Company and the City of Toronto set forth in the schedules to e. 99 of the Statutes of Ontario, 55 Vict., in 1892, the right of the city to determine, de- cide upon and direct the establishment of new lines of tracks and tramway service, in the manner therein prescribed, applies only within the territorial limits of the city as constituted at the date of the contract. Judgment appealed from (10 Ont. L. R. 657), reversed, Girouard, J., dissenting. — The city, and not the company, is the proper authority to determine, decide upon and direct the establishmerit of new lines, and the service, time-tables and routes thereon. Judgment appealed from affirmed, Sedgewick, J., dissenting. — ^As between the contracting parties, the company, and not the city, is the proper authority to deter- mine, decide upon and direct the time at which the use of open cars shall be discon- tinued in the autumn 'and resumed in the spring, and when the cars should be pro- vided with heating apparatus and heated. Judgment appealed from reversed, Girouard, J., dissenting. — Upon the failure of the com-" pany to comply with requisitions for exten- sions as provided in the agreement, it has no right of action against the city for grants of the privilege to others ; the right of making such grants accrues, ipso faoto, to the city, but is not the only remedy which the city is entitled to invoke. Judg- ment appealed from affirmed. Sedgewick, J., dissenting. — Cars starting out before mid- night as day-cars may be required by the city to complete their routes, although it may be necessary for them to run after midnight or transfer their passengers to a car which would carry them to their destina- tions without payment of exti"a fares, but at midnight their character would be changed to night cars and all- passengers entering them after that hour could be obliged to pay night fares. Sedgewick, J., dissenting. — (Varied on appeal by Privy Council, 26th April, 1907, 49 Can. Gaz. 102.) Toronto By. Go. v. City of Toronto, xxxvii., 430. 6. Jfegligenoe-^Operation of tramway — Precautions for safety of passengers — Cross- ing cars — Sounding gong— Slackening speed at dangerous places- — Neglect of rules — Pas- senger alighting from front of car — Contrib- utory negligence.] — A passenger on a crowded tram-caT, being near the front of the car, on reaching his destination, made his way past several persons standing in the aisl^ and front vestibule and alighted from the front steps on the side next the parallel track upon' which another car was coming at considerable speed in the opposite direction, and was injured. The space be- tween the crossing cars was about 44 inches and there was no rule of the company to prevent passengers alighting from the front steps. The passenger was not aware of the car approaching from the opposite direc- tion when he alighted, and the motorman of the car which struck him had neglected to observe a Tule of the company requiring that speed should be slackened and the gong rung continuously while cars were passing each other on the double tracks. The courts below held (15 Man. Rep. 338), that the company was liable- in damages on account of the motorman's negligence ; that the plain- tiff had not been guilty of contributory negligence, under the circumstances ; and that the company was obliged to take proper precautions for the safety of passengers, even after they had alighted upon the street beside the tracks. Without calling upon, counsel for the respondent, the Supreme Court of Canada dismissed the appeal with costs. Winnipeg Electric St. Ry. Co. v. Sell, xxxvii., 515. 7. Operation of street railway — Carriage of passengers — Contract — Continuous pas- sage.] — The •plaintiff wished to proceed to a certain part of Halifax and, when a car came along labelled as going in the required direction, boarded a trailer attached to it whi<;h, however, was not so labelled. There was an unusual amount of travel on the street cars that day and when the car con- taining plaintiff had proceeded a certain dis- tance it was stopped and the passengers in- formed that it would not go farther in that direction. The plaintiff insisted on his right to be carried ,to his destination in that car, refused a transfer and hired a cab. In an action for damages the courts below held (38 N. S. Rep. 212), that there was no obligation on the company's part to carry plaintiff to his destination on that particular car, that it was his duty to inquire of the conductor and ascertain where such car was going, and he could not recover. This judgment was affirmed on appeal, Idington, J., dissenting. O'Connor v. Halifax Tramway Co., xxxvii., 523. 1197 TRAMWAYS, 1198 8. Municipal corporation — Agreement with Electric Street Ry. Co. — Use of streets — Payment for — Percentage of receipts — Traf- fic heyond city — Validity of agreement.'] — By agreement between the City of Hamil- ton and the Hamilton Street Ry. Co. the latter was authorized to construct its rail- way on certain named streets and agreed to pay to the city, inter alia, certain percent- ages on their gross receipts. — Held, follow- ing Montreal Street Ry. Co. v. City of Montreal ([1906] A. C. 100), that such pay- ment applies in respect to all traffic in the city including that originating or termin- ating in the adjoining Township of Barton. — Held, also, that as, when the railway was extended into Barton, the company agreed with that township to carry passengers from there into the city at city rates, the per- centage was payable on the whole of such traffic and not on the portion within the city only. — Held, further, that the power of the company to construct its railway was not derived wholly from its charter, but was subject to the permission of the city corpora- tion ; the city had, therefore, a right to stipulate for payment of such percentages and the agreement therefor was intra vires. — The judgment of the Court of Appeal (10 Ont. L. R. 5T5), affirming that of Meredith, J., at the trial (8 Ont. L. R. 455), was affirmed. Hamilton St. Ry. Co. y. City of Hamilton, xxxviii., 106. 9. Negligence — Street railway — Excessive speed — Oong not sounded — Contributory negligence — Damages.] — A passenger on a street car in Toronto going west alighted on the side farthest from the other track and passed in front of the car to cross to the opposite side of the street. The space be- tween the two tracks was very narrow and seeing a car coming from the west, as she was about to step on the track, she recoiled, and at the same time the car she had left started, and she was crushed between the two, receiving injuries from which she died. In an action by her father and mother for damages the jury found that the company was negligent in running the east bound car at excessive speed and starting the west bound car> and not sounding the gong in proper time. Tbey found also that de- ceased was negligent, but that the company could, nevertheless, have avoided the acci- dent by the exercise of reasonable care. — Held, that the case having been submitted to the jury with a charge not objected to by the defendants and the evidence justify- ing the findings the verdict for the plaintiffs should not he disturbed. — The plaintiffs should not have had the funeral and other expenses incurred by the father of deceased allowed as damages in the action. Toronto Ry. Co. V. Mulvaney, xxxviii., 327. 10. Negligence — Street Raihcuy Co. — Rules — Contributory negligence — Motor- man.] — Rule 212 of the rules of the London St. Ry. Co. provides that "when the power leaves the line the controller must be shut off, the overhead switch thrown and the car brought to a stop ..." A car on which the lights bad been weak and inter- mittent for some little time passed a point on the line at which there was a circuit breaker when the power ceased to operate. The motorman shut off tlie controller but, instead of applying the brakes, allowed the ear to proceed by the momentum it had ac- quired, and it collided with a stationary car on the line ahead of it. In an action by the motorman claiming damages for in- juries received through such collision: — Held, that the accident was due to the motor- man's disregard of the above rule and he could not recover. Harris v. London St Ry. Co., xxxix., 398. 11.' Negligence — Operation of tramway — Approaching cross-street — Rules of company — Charge of judge — Contributory negligence —Findings of jury.] — A rule of the Toronto Ry. Co. provides that "when approaching crossings and crowded places where there is a possibility of accidents the speed must be reduced and the ear kept carefully under control. Go very slowly over all curves, switches and intersections ; never faster than three miles an hour . ..." A girl on the south side of Queen Street wished to cross to University Avenue which reaches but does not cross Queen. She saw a car coming along the latter street from the east and thought she had time to cross, but she was struck and severely injured. On the trial of an action for damages the judge in his charge said: "It \s not a question, gentlemen of the jury, as to the motorman's duty under the rule, it is a question of what is reasonable for him to do." The jury found that defendants were not guilty of negligence ; that plaintiff by the exercise of reasona'ble care could have avoided the injury ; and that she failed to exercise such care by not taking proper precautions before crossing. The action was dismissed at the trial : a Divisional Court ordered a new trial on the ground that the jud?e had mis- directed the jury in withdrawing from their consideration the rules of the company. The Court of Appeal restored the judgment of the trial. — Held, affirming the judgment of the Court of Appeal (15 Ont. L. R. 195). which set aside the order of the Divisional Court for a new trial (13 Ont. L. R. 423), Idington, J., dissenting, that the action was properly dismissed. — Held, per Girouard and Duff, JJ. — The judge's charge was open to objection, but as under the findings of the jury and the evidence plaintiff could not pos- sibly recover, a new trial should be refused. — Per Davies, J. — Thei'e was no misdirec- tion. The jury were not led to believe that the rules were not to be considered, but only that they should be the standard as to what was or was not negligence, which question should be decided on -the facts proved. — Per Maelennan, J. — The place at which the accident occurred, where TJniversity Avenue meets Queen Street, is not a crossing or intersection within the meaning of the rules and they do not apply in this case. Brenner v. Toronto Ry. Co., xl., 540. 12. Negligence — Operation of tramtcay — Use of highway — Repair of streets — Danger- ous way — Speed — Headlights — Exercise of ordinary and reasonable care.] — The com- pany's tramway line was laid upon a high- way which it was not bound to keep in repair, and there was no provision by which headlights were required to be used on its tram-cars during the night-time. The high- way had become dangerous at a curve on 1199 TEAMWAYS, 1200 the line on account of accumulations of ice and snow tliat inclined towards "the tracks. After passing the front of a car, coming from the opposite direction, after dark, at the rate of about seven miles an hour and without a head-light, either through a sud- den movement of the horse or on account of the inclination of the roadway, the vehicle in which the plaintiff was seated slid towards the side of the car, which struck it with great force and injured him. — Held, per Taschereau, C.J., and Sedge- wick and Davies, JJ., that, under the cir- cumstances, the rate of speed at which the car was driven and, the absence of a head- light did not constitute actionable negli- gence on the part of the, company. — Seld, per Girouard and Mills, JJ., that, as the company was aware of the dangerous condi- tion of the highway at the place where the accident occurred, during the night-time, it was liable for negligence in failing to slacken spded and provide sufficient lights.. — Per At-mour, J. — As the questions involved related merely to questions of fact, the ap- peal should be dismissed. — ^The judges being thus equally divided in opinion, the appeal stood dismissed with costs and the judgment appealed from stood affirmed. Montreal Street By. Co. v. McDougall, Gout. Cas. 284. 13. Operation of tramway — Negligence — Dangerous way — Rerrwval of ice and snow — Right of way — Costs.] — The action was for' damages sustained while the plaintiff was driving along the street railway tracks, on a public highway, between high banks of snow and ice. The car came behind the^ plaintiff's vehicle, warning was given by sounding the gong and the rate of speed was reduced ; plaintiff, however, delayed getting off the tracks until the car was very close to him, and then, in turning out his sleigh slid on the inclined banks, was struck by the side of the car, and be was injured. The courts below held that the tramcar had the right of way, that the injuries were the direct result of the plaintiff's imprudence and dismissed the action. On an equal divi- sion in opinion, the appeal stood dismissed with costs. Vincent v. Montreal Street Ry. Co., Cout. Cas. 30e. 14. Negligence — Street railway — Explo- sion — Defective controller — Inspection.} — S. was riding on the end of the seat of an open street ear in Toronto when an explosion oc- curred. The car was still in motion when oth^r passengers in the same seat, apparently in a panic, cried to S. to get off,, and when he did not do so, endeavoured to get past him whereby he was pushed off and injured. In an action for damages it appeared that (he explosion was caused by a defective controller and that the motorman at once cut off the current, but did not apply the brakes, and the jury found the company negligent in using a rebuilt controller in a defective condition and not properly In- spected, and the motorman negligent in not applying the brakes. — Held, affirming the judgment of the Court of Appeal (27 Ont. L. R. 332), that the evidence justified the jury in finding that the controller had not been properly inspected and that a proper inspection might have avoided the accident. — Held, per Idingtoij and Brodeur, JJ., Anglin and Davies, JJ., contra, that the motorman was guilty of negligence in not applying the brakes. Toronto Ry. Co, v. Fleming, xlvii., 612. 15. Tramway company — Construction of works — Independent contractor — Danger- ous system — Injury to property — Negligence — Exercise of statutory authority — OoKreZo- tive duty — Damages — Special release."] — A company with statutory authority to con- struct a tramway acquired a strip of plain- tiffs land for its right-of-way, the vendor granting a release for all damages which he might sustain by reason of the construction and operation of the tramway and the sever- ance of his farm. The company let the 'Work to a contractor who, in the construc- tion of the road-bed blasted away a hiU- side by a method known as "top-lifting" thereby throwing large quantities of rock outside the right-of-way and upon plaintiff's adjoining lands in such a manner as to inter- fere with his use thereof. This injury could have been avoided by proper precau- tions. — Held, affirming the judgment ap- pealed from (18 B. C. Rep. 81), Fitzpatrick, C.J., hesitante, that the company was re- sponsible in damages for the omission of their contractor to take precautions neces- sary to prevent his blasting operations producing the injury to the plaintiff's lands. Held, further, that the general language of the release should be so construed as to re- strict it to the matters in regard to which it had been granted with reference to the proper exercise of the powers of the com- pany to construct the tramway in question, and that it could not apply to injuries caused through negligence. — Per Duff, J. — Where statutory powers respecting the construction of works are being exercised" through an in- dependent contractor, the correlative obliga- tion of the beneficiaries of those_ powers to see that due care is takffi to avoid unneces- sary injurious consequences to the property of other persons is not discharged when their contractor fails to perform that duty, and they afe responsible accordingly. Hardaker V. Idle District Council ((1896) 1 Q. B. 335), and Rohinson v. Beaconsfield Rural Council ((1911) 2 Ch. 188), referred to. Vancouver Power Go. v. Hounsome, xlix., 430. 16. Negligence — Operation of tramway — "Block and staff" system — Disregard of rules — Defective system.] — A motorman in the defendants' employ was injured in a collision with the car ahead of that upon which be was performing his work. The company's operation rules provided that cars operated in the same direction, as "double- headers," unless block signals were in use, should be kept at least five minutes apart, except in closing up at stations ; also that, when the view ahead was obscured, cars should be kept under such control that they might be stopped within the range of vision, but the rule was not enforced. The plain- tiff, one of the company's motormen, on a foggy night, ran his car into the rear of another car standing at the station he was entering, and sustained injuries for which he claimed damages, alleging a defective system. The defence set up contributory negligence on the part of the motorman. but made no allusion to the breach of these regulations. A judgment, entered on the 1801 TRANSACTION. 1202 verdict of the jury in favour of the plaintiff, . was set aside by the Court of Appeal on the ground that the injury had resulted in consequence of the plaintiff's disregard of the rules. — Held, that as the rules had not been enforced by the defendants nor set up in their pleadings they could not be relied upon in support of the charge of contribu- tory negligence. — Judgment appealed from (17 B. C. Rep. 498), reversed and a new trial ordered. Daynes v. British Golumiia Electric Ry. Co., xlix, 518. And see Practice and Pbocedube. 17. 'Negligence — Operation of tramway — Carriage of passengers — Grossing cars — Un- due speed — Sounding gong — Findings of jury. Montreal Street Railway Co. v. Des- longchamps, xxxvii., 685. 18. "Railway Act, 1903," ss. 23, 184 — Construction, etc., of street railways and tramways — Removal of tracks — Board of Railway Commissioners for Canada — -Juris- diction — Condition precedent — Use of high- ways in cities and towns — Consent iy muni- cipal authority — Approval of iy-law — Que- bec Municipal Code, Arts. 464, 481, xxxvi., 369. See Railways. 19. "Railway Act, 1903," ss. 41, 186 — Board of Railway Commissioners— Jurisdic- tion — Construction of subway— Apportion- ment of cost — Person interested or affected — Street railway — Agreement with munici- pality, xxxvii., 354. See Railways. 20. Contract with municipality — Limited tickets — Specific performance — Injunction — Right of action — Parties, xxxix., 673. See Injunction. 21. Special leave to appeal — Discretion — Matter- in controversy, Cout. Gas. 322. gee Appeal. 22. Operation of tramway — 'Negligence — Evidence- — Findings of jury, Cout. Cas. 349. See Practice. 23. Operation of tramway — Powers of municipal corporation — Legislative authority — Use of streets — By-law — 'Conditions im- posed — Penalty for breach of conditions — Repeal of by-law — Contractual obligations — Offences against by-law — Jurisdiction of Recorder's Court — Prohibition, xli., 145. See Recorder's Court. 24. New trial — Misdirection — Questions for jury — 'Verdict on issues — Damages, xli., 431. See Damages. 25. Privilegesi and hypothecs — Operation on highway — Title to land — Immobilization *3/ destination — Sale of tramway by sheriff as "going concern" — 'Unpaid vendor — Lien on price of cars — Pledge — Contract — Con- struction of statute, 3 Edw. 'VII. e. 91 (Que ) — Priority of claim. — Collocation and distribution— Arts. 379, 2000 C. O.—Art. 752 Mun. Code, xlil., 267. See Lien. 26. Operation of tramway — Negligence — Injury to infant — Reckless running of car. Sydney and Glace Bay Railway Co. v. Lott, xlii., 220. 27. Provincial railway — "Through traffic" — -Constitutional law — Legislative jurisdic- tion — Powers of Board of Railway Commis- sioners — Construction of statute — R. S. 0. (1906), c. 31, s. 8(b)— B. N. A. Act, 1887, ss. 91, 92, xliii., 197. See Railway. 28. Damages — Negligence — Physical in- juries — Mental shock — Severance of dam- ages, xliv., 268. See Damages. 29. Negligence — Electric railway — Breach of company's rules. Winnipeg Electric Rail- toay Co. V. Hill, xlvi., 624. 30. Negligence — Operation of tramway- Passenger riding on platform — Dangerous arrangement of cai — Evidence, xlvii., 395. See Negligence. .31. Negligence — Operation of tramway — Carelessness of person injured — Reckless conduct of motorman.'] — The carelessness of the plaintiffs in driving across the tracks of a tramway was, in this case, excused by the reckless conduct of the defendant's motor- man in failing to use proper precautions to avoid the consequences of their negligence after he had become aware of it. Judgment appealed from (11 D. L. R. 3; 4 West. W. R. 263), affirmed. City of Calgary v. Harn- ovis, xlviii., 494. 32. Constitutional law — Board of Railway Commissioners — Highways — Overhead crossings — Apportionment of cost — Legis- lative jurisdiction — "Railway Act," R. S. C, 1906, ss. 8. 59, 231, 238— B. C. 8 d 9 Edw. VII. c. 33— "B. M. A. Act, 1867," s. 92, item 10. B. C. Electric R. R. Co. V. V. y. d E. R. R. •& Nav. Co., xlviii., 98. See Railways. 33. Practice — Action by dependents — B. C. "Families Compensation Act" — Release by deceased — Defence to action — Repudia- tion — Fraud — Setting aside release — Per- sonal representative — Right of action — Re- turn of money paid — Limitation of actions — General statutory provision — Carriers - — Private Act — B. C. "Consolidated Railway Company's Act" — Statute — B. S. B. C, 1911. c. 82 — "Lord Campbell's Act" — (B. C.) 59 Vict. c. 55, s. 60, xlix., 470. See Practice and Procedure. See Negligence. See Railways. TRANSACTION. Fire insurance — Statutory conditions — Notice — Conditions of application — R. S. Q., 1909, arts. 1034-1036 — Conditions indorsed on policy — Keeping and storing coal oil- Agent's knowledge— 'Waiver— Adjustment of claim— Offer of settlement by adjuster— Es^ toppel. Laforest v. Factories Ins., liu., 2i)b. See Insurance, Fire. 1203 TRESPASS. 1204. TRANSCONTINENTAL RAILWAY COMMISSIONERS. Petition of right — Contract — Powers of Commissioners of the Transcontinental Rail- ■way — Liahility of Crown — Constrwctian of statute— 3 Edw. VII. c. 1/1 {DJ, sliv., 448. See Cbown. And see Railway. TRANSFER. See Assignment ; Conveyance ; Title to Land. TREATIES. 1. Ontario v. Dominion, xlii., 1. See Indians. TRENT VALLEY CANAL. Navigation — Trent canal crossing — Siving iridge — Cost of construction — Maintenance Qrder in council, xxxviii., 211. See Railways, TRESPASS. 1. Exi>ropriation of land — Arbitration pro- ceedings — JJnlawful entry.] — The company, after a void award was made under arbitra- tion, entered upon land and cut down trees and removed gravel therefrom without giving the owners the notice required by statute of their intention to take their property. The owners, by their action above mentioned, claimed damages for trespass as well as the amount of the award. — Held, that as the action of the company was not authorized by statute the owners could sue for trespass and as at the trial the action on this claim was dismissed on the ground that such action was prohibited there should be a new trial. Inverness Ry. and Coal Co. v. Mclsaac, xxxvii., 134. And see Expropriation. 2. Possession — Evidence — Expropriation — Railway.'] — The casual use of land for pasturing cattle in common with other per- sons does not constitute evidence of posses- sion sufficient to maintain an action for trespass. — Judgment appealed from (1 East. L. R. 524), reversed. Teiniscouata Ry. Go. V. Clair, xxxviii., 230. And see Appeal. 3. Placer mining — Disputed title — Tres- pass pending litigation — Colour of right — Invasion of claim — Adverse acts — Sinister intention — Conversion — Blending 'materials — Accounts — Assessment of damages^Miti- gating circumstances — Compensation for necessary expenses — Estoppel — Standing-hy — Acquiescence.] — After a favourable judg- ment by the Gold Commissioner in respect to the boundary between contiguous placer mining locations and while an appeal there- from was penijing, the defendants, with the knowldege of the plaintiffs, entered upon the location and removed a quantity of aurifer- ous material from the disputed and undis- puted portions thereof, intermixed the pro- ducts without keeping any account of the quantities taken from these portions re- spectively and appropriated the gold recov- ered from the whole mass. — In an action for damages, taken subsequently, the plain- tiffs recovered for the total value of the gold estimated to have been taken from the disputed portion of the claim, without de- duction of the necessary expenses of work- ings and winning the gold. — Held, affirming the judgment appealed from, Davies, J., dis- senting, that a correct appreciation of the evidence disclosed a sinister intention on the part of the defendants, that they had deliberately blended the materials taken from both parts of the location, converted the whole mass to their own use and thereby destroyed the means of ascertaining the re- spective quantities so taken and the pro- portionate expense of recovering the precious metal therefrom and. that, consequently, they were liable in damages for the total value of ao much of the intermixed products as wero not strictly proved to have come from the undisputed portion of the location. — Quwre. — Does the English rule governing the assess- ment of damages in respect of trespasses in coal mines supply a method of assessment applicable in its entirety to placer mining locations? Lamh v. Kincaid, xxxviii., 516. 4. Damages — Cutting timber — Sale to bond fide purchaser — Action by owner of land.] — F. conveyed land to bis wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to G. who bought in good faith and sold to another 6o«d pde purchaser. . In ah action by F.'s wife against the two purchasers the money wa.s paid into court and an interpleader issue granted to decide which of the claimants, the plaintiff or G., was entitled to have it. — Held, affirm- ing the judgment of the Court of Appeal (16 Ont. L, R. 123), which reversed the decision of the Divisional Court (14 Ont. L. R. 360). that the pjaintiff was entitled to the whole sum. Duff, J., expressed no opinion on the question. — Held, also, Iding- ton. J., dubitante, and Duff. .1.. dissenting, that if necessary the writ and interoleader order could be amended by adding F. as a co-plaintiff with his wife. Career v. Faulk- ner, xl., 399. 5. Title to land — Boundaries — Conven- tional line — Agreement at trial — Pleading.] — ^In an action for damages, for tresspass by McL. on M.'s land and by dosing ancient lights McL. claimed title in himself and pleaded that a conventional line between his lot and that of M. had been agreed to by L., a predecessor in title. On the trial the parties agreed to strike out the pleadings in reference to lights and drains and to try the question of a boundary only. MeL. al- leged that some fourteen years previous he and L. had agreed upon a conventional boundary line between their properties and that a fence was erected thereon, and that all parties had recognized this as the bound- ary ever since. The Supreme Court of Nova I 1205 TRESPASS. vioa Scotia beld that although the general prin- ciple was established that where a lot of land is conveyed describing it as bounded by an adjoining lot, the true dividing line between these lots must be presumed to have been re- ferred to as the boundary of the land con- veyed, this is subject to the qualiflcation that the facts do not indicate a different intention on the part of the grantor (which is a question of fact and not of law), and that in the pi-esent case the plaintiff's grantor never intended to grant and to cov- enant for good title land which he did not himself claim and which he knew was in the adverse possession of another, and that M. not being in possession could not recover damages in an action for trespass guare clausum fregit. — Held, Sir W. J. Ritchie, C.J. and Gwynne, J., dissenting, that the judgment of the court below in favour of the defendant should be affirmed and the appeal dismissed with costs. — Held, per Henry, J., that M. had failed to establish title to the land in question, and that be took the deed from his grantor with full knowledge of the apparent boundary line as shewn by the fence ei-ected thereon, and must be taken to have purchased on the understanding that the fence was the bound- ary line settled upon and agreed to by those under whom he claimed. — Per Henry, J., that the plaintiff could not possibly recover in an action quare clausum fregit.^Eeld, per Gwynne, J,, that upon the evidence all that was intended by L, was to agree upon a conventional line as the southern bound- ary of the lane, which at that time and continuously down to the institution of the action had been used by both parties, and which was indispensable to the beneficial enjoyment of the property of M., and the parties did not, in so agreeing, intend to affect in any way the title of M. to the land on which the lane was situate. Grasett V. Carter (10 Can. S. C. R. 105), discussed. — Held, per Gwynne, J. — The Judicature Act, R. S. N. S. (5 ser.) c. 104, has abol- ished all forms of action and the technicali- ties incident thereto, and, even if the action was improperly brought in trespass, M. should have been granted the relief to which he was entitled upon the facts proved. Mooney v. Mcintosh, (xiv., 740) ; Cam. Cas. 171. 6. Negligence — Trespasser — Licensee — Overholding tenant.] — A trespasser or bare licensee injured through negligence may maintain an action. Sievert v. Broolcfleld, XXXV., 494. And see Master and Sbkvant. 7. Expropriation of land — Statutory auth- ority — Manufacturing site — Survey — Loca- tion, xxxiv., 394. See Expropriation. 8. Negligence — Electric ivires — Trespasser on electric company's poles — Evidence — Re- marks of counsel — Contributory negligence — Disagreement of jury^-'New trial, xxxiv., 698.' See Negligence. 9. Title to land — Trespass — Possession — Right of action — Enclosure iy fencing. XXXV., 185. See TiTXE to Land. 10. Practice — Pleading — Condition prece- dent — 'Construction of statute — 59 Viot. c. 62, ss. 9, 25 (B.C.) — Mineral claim — Expro- priation — Watercourses — Waierworhs — Damages — Waiver — Injunction, xxxv., 309. See Expropriation. 11. Crown lands — Mining lease — Conver- sion — Title to land — Evidence — Description in grant — Plan of survey — Certified copy, XXXV., 527. See Title to Land. 12. New trial — Contradictory evidence — Wilful trespass — Rule in assessing damages — Practice—Adding party- — Reversal on ap- peal, xxxvi., 152. See Damages. 13. Construction of statute — Toll-hridge — Franchise — Exclusive limits — Measurement of distance — Encroachment — 5S Geo. III. c. 20 (L.C.), xxxvi., 224. See Tolls. 14. Operation of raihray — Straying . ani- mals — Negligence — Duty as regards trespass- ers on railway — Herding stock — Evidence — • Inferences as to facts, xxxvi., 641. See Negligence. 15. Watercourse — Riparian rights — Ex- propriation — Torts — Diversion of natural flow — Injurious affection — Damages — Exe- cution of statutory powers — Arbitration — Injunction — Mandamus — Cotistruction of statute — .59 Vict. c. JiJf (N.S.), xxxvii., 464. See Rivers and Streams. 16. Title to land — Ownership — Artificial watercourse — Canal hanks — Possessory ac- tion — Bornage — Practice, xxxvii., 668. See Title to Land. 17. Negligence — Horse racing — Intruder upon race-track — Carelessness, xxxviii.. 226. See Negligence. 18. Title to land — Plan of snrvcu — Evi- dence — Onus of proof — Findings of jury — Error — Neiv trial, xxxviii., 336. See New Trial. 19. Possessory action — Troiihle de posses- sion — Right of action — Actio negntoriri ser- vitutis — Interference with watercourse — Agreement for user — E.rpiration of license hy non-use — Tacit renen-al — Cancellation of agreement — Rcvourse for damages, -xxxix., 81. See Action ; Practice. 20. Neiiliaencc — Railwaij Act, 1903 — 3 Edw. TIL c. 5S, s. 2-31 — Animals at large — Construction of statute — Words and terms — "A* large upon the highway or otherwise" — Fencing of railway — Trespass from lands not belonging to owner of animals, xxxix., 251. See Negligence. 21. Negligence — Electric lighting — Dnn- aerous currents — Breach of contract — Sur- reptitious installations — Liability for dam- ages, xxxix., 326. See Negligence. 1207 TEUSTS. 1208 22. Title to land — Construction of deed — Basement appurtenant — Use of common lane — Overhanging fire-escape — Encroachment on space over lane — Right of action, xl., 188. See Deed. ' 23. Appeal — Jurisdiction — Title to land — Action possessoire — Demolition of works — Matter in controversy, Cout. Cas. 141. See Appeal. 24. Mines and minerals — Boundary — Hillside claim — Jurisdiction — Appeal per saltum — Practice, Cout. Cas. 281. See Mines and Mining. 25. Municipal corporaiion — Building by- law — Dangerous constructions — Abatement of nuisance — Condition precedent — Notice — Order to repair — Demolition of structure — Forcible entry — Tort — Damages — Ccnstruc- tion of statute — Montreal city charter, xli*., 579. See MuNiciPlAL Coepoeation. 26. Mining Act—Orant of mining land — Reservation of pine timber — Right of grantee to sCut for special purposes — Cutting pine — • Right of action, xlvi., 45. See Mining Laws. 27. Railway company — Occupation of lands — Side tracks — Continuous trespass — Damages. Canadian Pacific Railway Co. V. Carr, xlviii., 514. TRIAL. 1. Criminal law — Practice — Charge to jury — Grown case reserved — Reserved ques- tions — Dissent from affirmance of convic- tion — Appeal — Jurisdiction — Criminal Code-, 1892, ss. 742, 743, 7U, 750— R. S. C. (1906) c. 146, ss. lOlS, 1015, 1016, 1024 — Admission of evidence — Res gestCB, xxxviii., 284. 2. Criminal 'law — Trial for murder — Im- proper admission of evidence — Substantial wrong or miscarriage — Criminal Code, s. 1019, xliv., 331. See Criminal Law. And see New Trial ; Practice. TROVER. Ships and shipping — Material used in con- struction — Sale of goods — Contract — Prin- cipal and agent — Misrepresentations ■ — • Mistake — Conversion -~ Evidence — Mis- direction — New trial — Ship's husband — Pledging credit of owners— Necessary out- fitting at home port, Cout. Cas. 131. See Ships and Shipping. TRUSTS. 1. Title to land — Conveyance upon condi- tions — Public park — Trust — Forfeiture — Assignment of reversionary interest — De- cree in favour of assignee — Champertous agreement.'] — C. conveyed lands to the city for the purposes of a park or public recrea- tion place with conditions prohibiting their use for certain specified purposes and, within a time limited, that the city should clear the land of stumps and roots, plough, level and harrow the same according to the natural contour of the ground, seed it down, build a road to it and "maintain the same in such fit, proper and good condition, as aforesaid." In an action by the assignee of C. for a declaration that the city held the lands in trust and for re-conveyance of the same to him, under the proviso on breach of conditions, it appeared that about one- sixth of the land had been left in its natural state, "virgin forest,'' but that the remainder had been cleared and made fit for "ordinary athletics, Scotch athletics" although not suit- able for games or sports requiring "iiice" level ground. It appeared, also, that the road had been built, but that, as population did not increase in the vicinity, the grounds were not in demand for athletic or exhibi- tion purposes, they had not been, used and had become somewhat covered with under- growth of chaparal and bracken. — Held, Sedgewick, J., dissenting, affirming the judg- ment appealed from, that there was no such breach of the trusts as could warrant a declaration of forfeiture under the pro- visoes of the deed of conveyance. — Per Kil- 1am, J. Had /there been a breach |off trust, the resulting forfeiture could have been decreed in favour of the assignee of the grantor. (Appeal from 10 B. C. Rep. 31, dismissed.) Clark v. City of Vancouver, XXXV., 121. 2. Will — Construction of residuary clause — Power of selection — Discretion of trustees — Vagueness or uncertainty — Designated class of beneficiaries.'] — ^A devise in a will directing the distribution of the residue of the testator's estate among his brothers and sisters or nephews and nieces who should be most in need of it, at the discretion of trustees therein named, is valid and confers absolute power upon the trustees of select- ing beneficiaries from the classes of persons mentioned. MoGibbon v. Abbott (10 App. Cas. 653), followed; Ross v. Ross (25 Can. S. C. !R. 307), referred to. Brosseau v. Dor4, XXXV., 205' 3. 'Will — Conditional devise.] — The pro- perty was devised by will as follows : "I give and bequeath to my beloved wife, Margaret Mclsaac, all and singular, the property of which I am at present possessed, whether real or personal or wherever situated, to be by her disposed of amongst my beloved chil- dren as she may judge most beneficial for herself and tliem, and also order that all ray just and lawful debts be paid out of the same. And I do hereiby appoint my brother, Donald Mclsaac, and my brother-in-law, Donald Mclsaac, tailor, my executors to carry out this my last will and testament." — Held, affirming the judgment appealed from (38 N. S. Rep. 60), that the widow took the real estate in fee with power to dispose of it and the personalty whenever she deemed it was for the benefit of her- self and her Children, to do so. Mclsaac v. Beaton, xxxvii., 143. 1209 TEUSTS. 121U 4. Breach of trust— Accounts — Evidence — yova Scotia ''Trustee Act" 2 Edw. VII. o. 13 — Liability of trustee — W. /S. Order XXXII., 'r. S— Judicial discretion — Statute of Limitations.} — By his last will N. be- queathed shares of his estate to his daughters A. and C. and appointed A. executrix and trustee. O. was wealtiminded and infirm and her share was directed to be invested for her benefit and the revenue paid to her half- yearly. A. proved the will, assumed the management of both shares and also the support and care of C. at their common domicile, "and applied their joint incomes to meet the general expenses. No detailed ac- counts were kept suflicient to comply with the terms of the trust nor to shew the amounts necessarily expended for the sup- port, care and attendance of 0., but A. kept books which shewed the general household expenses, and consisted, principally, of ad- missions against her own interests. After the decease of both A. and C. the plaintiffs obtained a reference to a master to ascertain the amount of the residue of the estate com- ing to C (who survived A.), and the re- ceipts and expenditures by A. on account of C. On receiving the report the judge referred it back to be varied, with further instructions and a direction that the books kept by A. should be admitted as primA facie evidence of the matter therein contained. (Section 37 N. S. Rep., pp. 452-464.) This order was affirmed by the Supreme Court of Nova Scotia in banco. — Held, affirming the judgment appealed from (37 N. S. Rep., 451 ) , that the allowances for such expendi- tures need not 'be restricted to amounts actually shewn to have been so expended; that, under the Nova Scotia statute, 2 Edw. VII. c. 13, and Order XXXII., rule 3, a judge may exercise judicial discretion to- wards relieving a trustee from liability for technical breaches of trust and for that purpose, may direct the admission of any evidence which he may deem proper for the taking of accounts. Cairns v. Murray, xxxvii., 163. 5. Company law — Illegal consideration for shares — Fraud— Breach of trust.'] — With a view to concealing the financial difficulties of a mining company and securing control of its proi)erty, the manager entered into a secret arrangement with the respondent whereby the latter was to acquire the liabili- ties, obtain judgment thereon, bring the pro- perty to sale under execution and purchase it for a new company to be organized in which the respondent was to have a large in- terest. The manager, who was a creditor of the company, waS to have his debt se- cured and to receive an allotment of shares in the new company proportionate to those held by him in the old company and be agreed that he would not reveal this under- standing to the other shareholders. — Held, affirming the judgment appealed from (11 B. C. Rep. 466), Sedgewitk, J., dissent- ing, that the agreement could not be en- forced as the consideration was illegal and a breach of trust by which the other shareholders were defrauded. Lasell v. Han- nah, xxxvii., 324. 6. Co-trustees — Joint action — Delegation of trust.] — ^A trustee in Toronto wrote to a co-trustee in St. Mary's stating that an offer had been made to purchase a portion of the trust estate for $12,000 and giving reasons why it should be accepted. The co-trustee replied concurring in said reasons and con- sentmg to the proposed sale. The Toronto trustee afterwards had negotiations with the solicitors of G. and at their suggestion offered to sell the same property to G. for $13,000, but without further notice to his co-trustee. The offer was accepted by the solicitors, whereupon the party who had offered $12,000 raised his offer to $14,000 and the trustee notified the solicitors of G. that the sale to him was cancelled. In a suit by G. for specific performance : — Held, aflJrming the judgment of the Court of Ap- peal (9 Ont. L. B. 522), that the letter written by the co-trustee in St. Mary's con- tained a consent to the particular sale mentioned therein only and could not be construed as a general consent to a sale to any person even for a higher price. Even if it could there were circumstances which occurred between the time it was written and the signing of the contract with G., which should have been comm'unicated to the co-trustee before he could be bound by said contract. Gibh v. McMahon, xxxvii., 362. 7. Breach of contract — Breach of trust — Assessment of damages — Sale of mining areas — Promotion of company — Failure to deliver securities — Principal and agent — Ac- count — Evidence — Salvage — Indemnity for necessary expenses — Laches — Estoppel.] — The plaintiffs transferred certain mining areas to the defendant in order that they might be sold together with other areas to a company to be incorporated for the pur- pose of operating the' consolidated mining properties, the defendants agreeing to give them a proportionate share of whatever bonds and certificates of stock he might receive for these consolidated properties upon the flota- tion of the scheme then being promoted by him and other associates. In o.rder to hold some of the areas it became necessary to borrow money, and the lender exacted a bonus in stock and bonds which the defendant gave him out of those received for conveyance of the properties to the com- pany. After deducting a ratable contribu- tion towards this bonus, the defendant de- livered to the plaintiffs the remainder of their proportion of stock and bonds, but did not then inform them that such deduc- tions had been made, and they, consequently, made no demand upon him for the balance of the shares and boods until some time afterwards when they brought the action to recover the securities or their value : — Held, affirming the judgment appealed from, that whether the defendant was to be regarded as a trustee or as the agent of the plain- tiffs, he was not entitled, without their consent, to make the deductions, either by vpay of salvage, or to indemnify himself for expenses necessarily incurred in the preser- vation of the properties; and that, under the circumstances, their failure to demand delivery of the remainder of the securities before action did not deprive the plaintiffs of their right to recover. — If the defendant is to be considered a trustee wrongfully withholding securities which he was bound to deliver, he is liable for damages cal- culated upon the assumption that they would 1211 TEUSTS. 1213 hiive been disposed of at the best price ob- tainable. If, liowever, lie is to be regarded as a contractor who has failed to deliver the securities according to the terms of his agreement, he is liable for damages based on the selling price of the securities at the time when his obligation to deliver them arose. Nant-Y-Gh and Blaina Ironworks Vo. V. Grave (12 Ch. D. 738) ; The Steam- shii) Carrisbrooke Co. v. The London and Proinncial Marine and General Ins. Co. ( (1901) 2 K. B. 861), and Michael v. Sart A Co. ((1902) 1 K. B. 382), followed. McTSleil V. Fult«, xxxviii., 198. 8. Partnership — Bissolution — IVew part- nership Jiy continuing partner — Liability of new firm — Rights of creditors — Trust — ISf ovation.'] — A iirm consisting of two per- sons dissolved partnership, the retiring part- ner receiving a number of promissory notes in payment of his share in the business, which notes he indorsed to the plaintiff H. The continuing partner of the firm after- wards entered into partnership with the de- fendants and transferred to the new firm /ill the assets of his business, his liabilities, including the above mentioned promissory notes, being assumed by the co-partnership and charged against him. The new firm paid two of the note's and interest on others, and made a proposal for an extension of time to pay the whole which was not entertained. — Held, reversing the decision of the Court of Appeal (17 Ont. App. E. 456, suh- n amine Henderson v. Killey), and of the Divisional Court (14 O. R. 137), Foutnier, J., dissenting, that the agreement between i the continuing partner and the defendants did not make the defendants trustees of the former's property for the payment of his liabilities, and the act of the defendants in paying some of the notes did not amount to a novation as it was proved that plaintiff had obtained and still held a judgment against the maker and indorser of the notes in an action thereon and there was no con- sideration for such novation. Osborne v. -Henderson (xviii., 698) ; Cam. Cas 323. 9. Banking — Hypothecation of securities — Terms of pledge — Duty of pledgee.] — B. sold property to the 'Syndicat and took as security for the price mortgages on real and personal property and a promissory note and transferred the securities to the bank to secure his, present and future indebted- ness to it. He signed a document authoriz- ing the bank to realize on the same in its discretion, to grant extensions and give up securities, accept compositions, grant releases and discharges and otherwise deal with them as It might see fit without prejudice to B.'s liability. The note not being paid at ma- turity, the Bank sued the Syndicat and B. upon it and on the covenants in the mort- gages and obtained judgment against both. In the same action, the Syndicat, on counter- claim for damages for deceit, had judgment against B. which was eventually set aside, hut, while it existed, the bank made a set- tlement with the Syndicat and discharged the latter from all liability on the judgment of the bank on payment of over $20,000 less thdn the debt. B. was not a party to this settlement, and the bank afterwards re- fused to give him any information about it or to give him a statement of his account with the bank itself. In an action by B. for an account and to have the bank en- joined from further dealings with the se- curities : — Held, that the power given to the bank to deal with the securities was to be exercised for the purpose of liquidating B.'s debt, and, as to the surplus, for B.'s benefit ; that, the settlement having been made solely for the benefit of the bank and in sacrifice of B.'s interests, the bank vio- lated its duty, and had n'ot satisfied the onus upon it of shewing that, had the whole amount of the judgment been recovered from the Syndicat, B. would not have benefited thereby. CarMdian Bank of Commerce v. Barrette, xli., 561. 10. Ownership — Lease — Sheriff's sale — Title to land — Insurable interest — Fire in- surance — ■ Beneficiary— Principal and agent — Fraudulent contrivances — Estoppel, xxxiv., 1. See Lease. 11. Syndicate to promote joint stock com- pany — Partnership — Trust agreement — Construction of contract — Administration by majority of partners — Lapse of time limit — Specific performance, xxxv., 645. See Specific Performance. 12. Probate of will — Promoter — Evi- dence — Subsequent conduct of testator — Residiuary devise, xxxvii., 404. See Will. / 13. Title to land — Ambiguous description of grantee — "Greek Catholic Church" — Evidence — Construotidn of deed — Reversal of concurrent findings, xxxvii., 177. See Title to Land. 14. Crown — Breach of trust — Purchase of debentures out of Common School Fund — Knowledge of misappropriation of moneys — Payment of interest — Statutory prohibi- tion — Evision of statute — Estoppel against Crown — Action — Adding parties — Practice, xxxviii.. 62. See QtTEKEC North Shore Turnpike Eoad Trust. 15. Constitutional law — Liabilities of pro- vince at confederation — Special funds ■ — Rate of interest — Trust funds of debt — Award of 1810— B. N. A. Act, 18611, ss. Ill and 1^2, xxxix., 14. See Constitutional Law. 16. Executor and trustee — Moneys of testator — Sale by eweoutor — Under value — Jurisdiction of Probate Court, xxxix., 122. See Executors and Administratoss. 17. Title to land — Interest in mining areas — Sale by trustee — Recovery of pro- ceeds of sale — Agreement in writing — Statiite of Frauds— R. S. N. S. (1900) c. HI, ss. 4 and 7 — Purt performan-ce — Acts referable to contract — Evidence — Pleading, xxxlx., 608. See Title to Land. 18. Trust — Company law — Extra re- muneration — Ultra vires act of directors — 1313 USUPEUCT. 1214 Ratification — Recovery of moneys illegally paid — Mistake of law, xxxix., 614. See Company. 19. Principal and agent — Secret profit — Clandestine transactions iy broker — Sham purchaser — Commission — Quantum meruit, xl, 134. See Principal and Agent. 20. Breach of trust — Interest on ionds — Unlawful ocis by Crown officers — Ultra vires — Withholding interest from Crown — Neces- sity of impleading other interested parties — Praotice, Cout. Gas. 316 . See Pkactice. 21. So!e of land — Principal and agent — Secret profit by broker — Participation in breach of trust — Implied partnership — Liability to account — Purchaser in good faith — Disclosure of suspicious circumstances — Cross-appeal — Parties — Practice, xliv., 543. See Bkokeb. 22. Will — Trust for benefit of son — Dis- cretion of executor — Death of beneficiary — Funds not disposed of. In re Rispin, Can- ada Trust Co. V. Davis, xlvi., 64P. 23. Construction of will — Substitution — Death of grev4 — Accretion — Partition — Ap- portionment in aliquot shares — Distribution of estate — Partial intestacy — Devolution, xlvli., 42. See Wilt. 24. Assignment — Insolvency — Preference — Statute of Frauds, xlvii., 392. See Assignment. UNDUE INFLUENCE. Contract — Security for debt — Promis- sory note — Husband and wife — Parent and child, xxxv., 393. See CONTBACT. And see Dubess. UPPER CANADA BUILDING FUND. See Constitutional Law. grant — Conditions of grant — User of flow- ing waters — Diversion of watercourse — Dams and flumes — Construction of deed — Riparian rights — Priority of right — Injunc- tion, xxxviii., 79. See Mixes and Mining. UPPER CANADA GRAMMAR SCHOOL FUND. See Constitutional Ijaw. USER. 1. Canal lands — Condition subsequent — Mis-user by Crown — Forfeiture. Wright v The Queen, Cout. Cas. 131. 2. Highway — Dedication — -Acceptance by public, xxxvli., 210.. See Highways. 3. Possessory action — Trouble de posses- sion — Right of action — Actio negatoria ser- vitutis — Trespass — Interference with water- course — Agreement as to user — Expiration of license by non-user — Tacit renewal — Cam,- cellation of agreement — Recourse for dam- ages, xxxix., 81. See Action ; Practice. 4. Mandamus — Driving timber — Order to fix tolls — Past user of stream — River im- provements— R. 8. O. (1891) c. U2, s. 13, xl., 523. See Mandamus. 5. Title to land — Dedication — Public high- way — Expropriation ■ — Presumption, Cam. Cas. 53. See Highway. 6. Title to land — Easement appurtenant — User of lane — Prescription — Agreement for right-of-way — Construction of contract — Practice, Cam. Cas. 352. See Easement. 7. Trespass — Easement — Public way — Dedication — Prescription — Estoppel — "Law and Transfer of Property Act," R. S. O., 1897, c. 119, xlviii., 57. See Highway. 8. Sale of land — Stipulation as to user — Covenant, or condition — "Detached dwell- ing-house" — Apartment house. Pearson v. Adams, I., 204. See Deed. 9. "Quebec Woi'kmen's Compensation Ad" — Incompatible enactment — Repeal — Right of action. Lamontagne v. Quebec Railway, Light, Heat A- Power Co., 1., 423. See Action. UPPER CANADA IMPROVEMENT FUND. See Constitutional Law. USE. Dominion mining regulations — Hydraulic mining — Placer mining^— Lease — Water- USUFRUCT. Construction of will — Substitution — Par- tition between institutes — Validating legisla- tion — 60 Vict. c. 95 (0.) — Construction of statute — Restraint of alienation — Interest of substitutes — Devise of property held by in- stitute under partition — Devolution of corpus of estate es nature — Accretion — Res judicata— Arts. 868, 9-}8 C. C. xxxviii., 1. See Will. 1215 VENDOE AND PUECHASEE. 1216 VALUATION. Sfreet railway — Franchise — Assumption iy municipaUty ■ — ■ Principle of valiMtion — Operation in two municipalities — Oom/puJr sory taking— B. S. 0. (1897) c. 208, slii., 581. See Tkamwat. VENDOR AND PURCHASER. 1. Misrepresentation — Fraud — Error — Rescission of contract — Sale or exchange — Dation en pavement — Improvements on pro- perty given in exchange — Option of party ag- grieved — Action to rescind — Actio quantum minoris — Latent defects — Damages — War- ranty — Agreement in writing — Formal deed.} — An action will lie against the ven- dor to set aside the sale of real estate and to recover the purchase price on the ground of error and of latent defects, even in the absence of fraud. — In such a case, the purchaser, alone has the option of returning sthe property and recovering the price or of retaining the property and recovering a por- tion of the price paid ; he cannot be forced to content himself with the action quantum minoris, and damages merely, upon the pre- text that the- property might serve some of his purposes notwithstanding the latent de- fects. — Where the vendor has sold, with warranty, a building constructed by himself, he must be presumed to have been aware of latent defects, and, in that respect, to have acted in bad faith and fraudulently in making the sale. — ■ The vendor, defendant, in the agreement for sale, represented that a block of buildings which he was selling to the plaintiff had been constructed by him of solid stone and brick and so described them in formal deeds subsequently executed relating to the sale. The walls subsequently began to crack, and it was discovered that a portion of the buildings had been improp- erly built of framed lum^ber filled in and encased with stone and brick in a manner to deceive the purchaser. — Held, that the contract was vitiated 'on account of error and fraud and should be set aside, and that, as the vendor knew of the faulty construc- tion, he was liable not only for the return of the price, but also for damages. — Held, also, that the nature of the contract de- pended upon the intentions of the parties as disclosed by the last instrument signed by them in relation thereto. — Held, further, that the action quantum minoris and for damages does not apply to cases where con- tracts are voidable on the grounds of error or fraud, but only to cases of warranty against latent defects if the purchaser so elects, the only recourse in cases of error and fraud being by rescission under art. 1000 of the Civil Code. ■ — In the present case, the sale was made in part in considera- tion of vacant city lots given in payment pro tanto, and, during the time the defendant was in possession of the lots he erected buildings upon them with his own materials. — Held, that, even if the contract amounted to a contract of exchange, it was subject to be rescinded in the same manner and for reasons similar to those which would avoid a sale, and, if the contract be set aside for bad faith on the part of the defendant. the plaintiff has options similar to those- mentioned in articles 417, 418, 1526 and 1527 y railway — Carriage of pas- senger — Special contract — Notice of condi- tion — Negligence — Exemption from iialiUtv, xlvii., 622. See Rahwats. ■WIFE. Construction of will — Description of lega- tee — Devise "to my wife"- — Bigamous mar- riage — Evidence — Burden of proof, xl., 210. See Maeeiaqe; Husband and Wife. And see Married Woman. WILL. 1., Corporation sole — Roman Catholic Bishop — Devise of personal and ecclesiasti- cal property — Construction of will.'] — -The will of the Roman Catholic Bishop of St. John, N.B., a corporation sole, contained the following devise of his property: — "Al- though all the church and ecclesiastical and charitable properties in the diocese are and should be vested in the Roman Catholic Bishop of St. John, New Brunswick, for the benefit of religion, education and charity, in trust according to the intentions and pur- poses for which they were acquired and established, yet to meet any want or mis- take I give and devise and bequeath all my estate, real and personal, wherever situated, to the Roman Catholic Bishop of St. John, New Brunswick, in trust for the purposes and intentions for which they are used and established." — Held, aflirming the judgment appealed from (36 N. B. Rep. 229), that the private property of the testator as well as the ecclesiastical property vested in him as bishop was devised by this clause and the fact that there were specific devises of personal property for other purposes did not alter its construction. Travers v. Casey, xxxiv., 419. 2. Discretion of executors — • Withholding income — Reasonable time — Failure of object of devise — Cy-pres — Costs.] — The Supreme Court of Nova Scotia (35 N. S. Rep. 526), affirming Townshend, J., declared that the direction in the will to apply a portion of the income of the residue for the introduc- tion and support of Jesuit Fathers in the City of Halifax was inexpedient and im- practicable and could not now be accom- plished and ordered such unapplied revenue with accumulations to be applied to charit- able purposes having regard to the will, and that the defendants should formulate a scheme to be submitted to the court within three months from the date of the decree. Th* action was for inquiry and account in respect to the estate, a decree that the in- come of the residue should be applied to charitable purposes and for the settlement of a scheme for its disposition and the appli- cation cy-pres of such portion of the in- come as could not be applied in the particu- lar mode directed by the will, with further directions. The Supreme Court made an order varying the decree by striking out the introductory paragraph so as, in effect, to declare the direction in the will at present impracticable and adjudging that the un- applied • income of the residue should, from and after a date nam(^d, be applied semi-an- nually by the defendants to the promotion and support, in the City of Halifax or its vicinity, of such charitable institutions and religious orders i,u connection with the Ro- man Catholic Church, and in such manner and in such proportions as the executors, in their discretion, might think proper in ac- cordance with the terms of the will and the powers thereby conferred upon them. And the court reserved further directions, with leave to either party to apply to the court below, and ordered the costs of all parties to be paid out of the funds of the estate in the hands of the defendants. Power V. Attorney-General for Nova Scotia, xxxv., 182. 3. Construction of residuary clause — Power of selection — Discretion of trustees — Vagueness or uncertainty — Designated class of beneficiaries.l-^A. devise in a wiU direct- ing the distribution of the residue of the testator's estate among his brothers and sisters or nephews and nieces who should be most in need of it, at the discretion of trustees therein named, is valid and confers absolute power upon the trustees of select- ing beneficiaries from the classes of persops mentioned. MoOibbon v. Abbott (10 App, Cas. 653), followed: Ross v. Ross (25 Can.. S. C. R. 307), referred to. Brosseau V. DorS, XXXV., 205. 4. Testamentary capacity — Evidence — Art. 831 C. C. — Marriage contract — Duress.] — An action to annul a marriage contract and set aside a will and codicil on grounds of insanity and duress [under circumstances stated in the judgments of the courts below (Q. R. 25 S. C. 275)], was dismissed at the trial, and the appeal was against the judgment of the Court of Review, affirming that decision. The 'Supreme Court of Can- ada dismissed the appeal with costs, for the reasons given in the court below. Hotte v. Birabin, xxxv., 477. 5. Signature of will — Execution — Evi- dence — Appeal.]— In proceedings for pro- bate of a will, the solicitor who drew it testified that it was signed ty the testatrix when the subscribing witnesses were absent ; that on their arrival he asked the testatrix if the signature to it was hers and if she wished the two persons present to witness it and she answered "yes ;" each of the wit- nesses acknowledged his signature to the will but swore that he had not heard such ques- tion asked and answered. The Judge of Probate held that the will was not properly, executed and his decision was afiBrnied. by. the Supreme Court of Nova Scotia.^ — Held., affirming the judgment appealed from (36 N. S. Rep. 482), that two courts having pronounced against the validity of the will such decision would not be reversed by a second (3ourt of Appeal, (Leave to appeal to Privy Council refused, July, 1905.) Mc- Neil V. Cullen, xxxv., 510. . 6. Will — Execution of will — Promoter — Evidence — Testamentary capacity.}— Whete 1241 WILL 1343 the - promoter of, and a residuary legatee under a will executed two days before the testator's death and attacked by his widow and a residuary legatee under a former will, the devise to the latter of whom was re- voked, failed to furnish evidence to corrobor- ate bis own testimony that the wiU wa's read over to the testator who seemed to understand what he was doing, and there was a doubt under all the evidence of his testamentary capacity, the wiU was set aside. Girouard, J., dissenting, held that the evidence was sufficient to establish the will as expressing the wishes of the testator. — Per Davies, J. — The will should stand ex- cept the portion disposing of the residue of the estate, the devise of which, in the former will, should be admitted to probate with it. British and Foreign Bible Society v. Tupper, xxxvii., 100. 7. Trust — Conditional devise.] — The pro- perty was devised by wiU as follows: "I give and bequeath to my beloved wife, Mar- garet Mclsaac, all and singular the property of which I am at present possessed, whether real or personal or whereever situated, to" be by her disposed of amongst my beloved children as she may judge most beneficial for herself and them, and also order that all my just and lawful debts be paid out of the same. And I do hereby appoint my brother, Donald Mclsaac, and my brotber-in-law, Donald Mclsaac, tailor, my exeeuto):s to carry out this my last wiU and testament." — Beld, affirming the judgment appealed from (38 N. S. Rep. 60), that the widow took the real estate in fee with power to dis- pose of it and the personalty whenever she deemed it was for the benefit of her chUd- dren to do so. Mclsaac v. Beaton, xxxvii., 143. 8. Probate of will — Promoter — Evidence — Subsequent conduct of testator — Resid- uary devise — Trust.] — In proceedings for probate by the executors of a will which was opposed on the ground that it was prepared by one of the executors who was also a beneficiary, there was evidence, though con- tradictory, that before the will was executed it was read over to the testator who seemed to understand its provisions. — Held, Iding- ton, J., dissenting, that such evidence and the facts that the testator lived for several years after it was executed and on several occasions during that time spoke of having made his will and never revoked nor altered it, satisfied the onus, if it existed, on the executor to satisfy the court that the testa- tor knew and approved of its provisions. — Held, also that where the testator's estate was worth some $50,000 and he had no children, it was doubtful if a bequest to the propounder, bis brother, of $1,000 was such a substantial benefit that it would give rise to the onus contended for by those opposing the will. Connell v. Gonnell, xxxvu., 404. 9. Construction of will — Usufruct — Sub- stitution — Partition between institutes — Validating legislation— 60 Vict. c. 95 (Q.) — Construction of statute — Restraint of alienation — Interest of substitutes— Devise of property held by institute under partition —Devolution of corpus of estate en nature Accretion — Res judicata — Arts. 868, Ho C. C]— The effect of the statute, 60 Vict, c. 95 (Que.), respecting the will of the late Amable Prgvost, read in conjunction with the provisions of the wiU and codicils therein referred to, is to declare the deed of partition between the beneficiaries there- under final and definitive and not merely provisional ; the judgment of the Court of Queen's Bench, on the appeal side, taken under that statute, has no other effect. Neither the statute nor the judgment re- ferred to sanctions the view that the said will and codicils, constitute more than one substitution ; there was but one substitution created thereunder in favour of all the joint legatees and, consequently, accretion takes place among them within the meaning of article 868 of the Civil Code, in the event of any legacy lapsing, under the terms of the will, upon the death of an institute without issue prior to the opening of the substitution. In such case the share of the institute dying without issue devolves to the other joint legatees, as well in usufruct as in absolute ownership, and, consequently, none of the institutes or substitutes have the right of disposing of any portion of the testator's estate, by will or otherwise, prior to the date of the opening of the substitution.-^ Judgment appealed from (Q. E. 28 S. C. 257), reversed. DeHertel v. Goddard (66 L J. P. C. 90), distinguished. (Reversed by Privy Council [1908] A. C. 541. Pro- vost v. Lamarche, xxxviii., 1. 10. Revocation of will — Testamentary capacity — Findings of fact — Practice — Im- proper suggestion — Undue influence — Capta- tion — Bounty taken by promoter — Fraudu- lent representations — Evidence — Onus of proof.} — While the testator was suffering from a wasting disease of which he died shortly afterwards, the defendant, his brother, took advantage of his weakness of mind and secretly obtained the execution of a will, in which he was made the prin- cipal beneficiary, by fraudulently suggest- ing and causing the testator to believe that his malady was caused and aggravated by the carelessness and want of skill of his wife in the preparation of his food. The testator and his wife had lived together in harmony for a number of years and, shortly after their marriage, bad made wills by which each of them, respectively, had con- stituted the other universal residuary lega- tee and the testator's former will, so made, was revoked by the wUl propounded by the defendant. — Held, that, as the promoter of the will, by which he took a bounty, had failed to discharge the onus of proof cast upon him to shew that the testator had acted freely and without undue influence in the revocation of the former wiU, the second wiU was invalid and should be set aside.^ — The judgment appealed from was reversed, on the ground of captation and undue in- fluence, but the Supreme Court of Canada refused to interfere with the concurrent findings of both courts below against the contention as to the testator's unsoundness of mind. Mayrand v. Dussault, xxxvui., 460. 11 Legacy — "Honeys" — Construction of ji-ill ] — "Where by will money was be- queathed to the testator's daughter "to, hold 1243 WILL nu and be enjoyed by her while she remained unmarried," with a bequest over in case of her decease or marriage : — Held, that the daughter was only entitled to the income from said money and not to possession and deposition thereof. — ^Remarks on the absence from the record of the decree of the Court of original jurisdiction. Re Daly; Daly v. Brown, xxxix., 122. And see Exectttors and Administrators. 12. Construction of will — Description of legatee — Devise "to my wife" — Bigamous marriage — Evidence — Burden of proof. 'i ■ — • A devise jnade in a will "to my wife" was claimed by two women, with both of whom the testator bad lived in the relationship of husband and wife.— ifeW, per Idiugton, J. — That, even if the first marriage was assumed to have been validly performed, all the sur- rounding circumstances shewed that, by the words "to my wife," the testator intended to indicate the woman with whom he was living, in that relationship, at the time of the execution of the will and thereafter up to the time of his death.- — Held, per Duff, J. — That the woman who claimed to have been first married to the testator had not suffi- ciently proved that fact, and that the other woman, who was living with the testator as his wife at the time of the execution of the will and up to the time of his death, was entitled to the devise. — Held, per Davies and Maclennan, JJ., dissenting. — ^That the first marriage was sufficiently proved and, consequently, that the devise went to the only person who was the legal wife of thp testator. — Fitzpatrick, C.J., was of opinion that the appeal should be dismissed. — Judg- ment appealed from (13 B. 0. Kep. 161), affirmed. Davies and Maclennan, JJ., dis- senting. Marks v. Marks., xl., 210. 13. Powers of executors — Winding-up es- tate — Time limit — Legacy — Special legis- lation — Extension of time — 3 Edw. VII. c. 1S6 (Que.) — Construction of statute.] — The provisions of the Quebec Statute, 3 Edw. VII. c. 136, have not the effect of extend- ing indefinitely the time limited by the will of the late Owen McGarvey for the invest- ment of $50,000 for the appellant's benefit as directed by the wiU.— Judgment appealed from (Q. E. 32 S. C. 364), reversed. Mc- Garvey V. McNally, xl., 489. 14. Testamentary capacity — Captation — Suggestion — Undue influence — Interdiction — Evidence — Onus of proof.] — The existence of circumstances which might raise suspi- cion that the execution of a will was pro- cured by captation, improper suggestions or undue influence on the part of those promot- ing it is not a sufficient ground to justify an Appellate Court in interfering with the concurrent findings of the courts below as to the validity of the will. — ^Judgment ap- pealed from (Q. R. 17 K. B. 215), affirmed, (?irouard and Maclennan, JJ., dissenting. Laramie v. Ferron, xli., 391. 15. Universal legacy — Powers vested in legatee — Devise ly legatee of residue undis- posed of at her death — Substitution — Words and phrase ■ — "Or not disposed of" — "In her possession.] — S., by his will. gave all his property absolutely to his wife with a direction that their children should be suitably maintained and educated by her. The will then provided "that should my said wife die leaving any of my said property or rights, in her possession or not disposed of, upon her said decease the same should be divided among our said children" in the manner specified. — Held, affirming the judgment of the Court of Review (Q. R. 40 S. C. 139, sub nom. Shearer v. Forman), that this provision did nat empower the wife to dispose of the residue at the time of her death by will, but had the effect of creating a substitution, de residua in favour of the childj'en. Shearer v. Hogg, xlvi., 492. 16. Construction of will — Substitution — Trust — Death of grev4 — Accretion — Parti- tion — Apportionment in aliquot shares — Dis- trihution of estate — Partial intestacy — De- volution.] — ^By his will, in 1845, M. de- vised his estate to trustees charging them with its administration in a manner intended to secure the enjoyment of the revenues by his surviving children and their descend- ants so long as the law would permit; he provided for the division of his estate into as many equal parts as he should leave children him surviving: "Pour chacune de ces^ parts ou portions de mes Mens repre- sentor les biens mobiliers et immobiliers dont cbacun de mes dits enfants aura seulement la moitifi des revenus sa vie durante, ainsi que ei-aprSs pourvu, et pour les revenus de chacune de ces parts ou portions de mes biens etre r^versibles apr6s le d6c6s de cha- cun de mes dits enfants aux enfants nfis en legitimes mariages d'eux, mes dits enfants, respectivement, et gtre substitug de descend- ants en descendants, et ce indfifiniment, ou autant que permis par la loi, en observant que je veux et entends que lors de chaque succession ou transmission de mes biens il en soit fait partage, autant que possible, entre-chacun de mes descendants de mani6re a pouvoir counaltre et distinguer la part ou portion des biens dont chacun d'eux aura les revenus sa vie durante." — At the time of his death, in 1847, eight of his children survived the testator and his estate was, accordingly, apportioned so far as then possible, the residue, not then conveniently divisible, be- ing held in suspense as a ninth share to be subsequently divided from time to time as it became possible to do so. Of the eight shares, that attributable to L. M., one of the childrein, was enjoyed by him up to the time of his death, in 1887, intestate as to the share in question and without issue. — Held, Brodeur, J., dissenting. — That, as the will did not give the children and grand- children of the testator any rights as pro- prietors in his estate, , there was no sub- stitution created by its provisions. — Held, - also, Davies and Brodeur, JJ., dissenting. — That; on the death of L. M. without issue, the share allotted to him remained vested in the trustees subject to distribution among the children of the testator and their de- scendants in the same manner and upon the same conditions as if L. M. had pre- deceased the testator and the estate had been originally apportioned' into seven instead of into eight parts. — Per Davies, J. — As there was no provision in the will in respect to lS4d WILL 124G children dying without issue, and as there was no collateral substitution, there was in- testacy resulting, on the death of L. M. with- out Issue, in regard to the share allotted to him ; consequently, it remained vested in the trustees for the benefit of and to be distributed amongst the heirs of the testator living at that date. — Per Brodeur, J., dis- senting. — The will bad the effect of creating a direct and collateral substitution. At the death of L. M. his brothers and sisters be- came substitutes and their descendants are appeUa. — Judgment appealed from (Q. R. 20 K. B. 1), reversed. Masson v. ilasson, xlvii., 42. 17. Execution — Testamentary capacity — Undue influence — Captation — Approval iy testatrix — Evidence — Beneficiary propound- ing will — Onus of proof.] — A person pro- pounding a will, in the preparation of which he was instrumental and by which he is sole beneficiary, is obliged to support it by evi- dence sufficient not only to shew that the will was duly executed, but also to justify the righteousness of the transaction and to establish that it truly expresses the last testamentary wish«s of the testator and that the testator knew and appreciated the ef- fect of its dispositions and approved of them. — Two days before her death the testatrix, to whom morphine was being administered to alleviate pain, executed two wills in the English form. She requested her husband to have a will prepared and, on his instruc- tions, bis brother, an advocate, drafted a will wiiereby the husband was made sole beneficiary. Upon this will being read over to her, in the forenoon, the testatrix took exception to it because it ignored a promise, made to her father, that certain property she had received from him should ultimately revert to mem1)ers of her own family; and- she did not then execute it. Another wiU was drafted by the husband's brother to meet her wishes, but, either on account of her drowsiness or because of the presence in her bedroom of friends, including her sis- ter, the plaintiff, the second will, though ready at noon, was not presented to the testatrix for signature until late in the afternoon, when she attempted to sign it, but the brother declared it worthless owing to the niegibUity of the signature. On be- ing told of this opinion, the will read to her in the morning, or one similar in its contents, was presented to her for signature and her husband offered to read it to hef, but sbe declined to have this done, saying that she had already beard it read and knew its contents; she then signed it with her mark in presence of witnesses. In an action' to set aside the last will, the evidence failed to establish that the testatrix understoo(i its contents and the difference between its provisions and those of the will which she had attempted to sign, nor did it remove suspicion arising from the fact that the im- peached will had been prepared under the instructions of the sole beneficiary, and other peculiar circumstances attending its execu- tion. — Held, reversing the judgment appealed from (Q. R. 22 K. B. 252) , the Chief Justice dissenting, that the evidence failed to estab- lish that the will in question expressed the true last testamentary wishes of the tes- tatrix and, consequently, that it should be ^|,t aside. Barry v. Butlin (2 Moo. P. C. 4S0) ; Fulton V. Andrews (L K. 7 H L 448) ; Tyrrell v. Painton ( (1894), P. 151) •' McLaughlin v. McLennan (26 Can. SCR 646) ; Brown v. Fisher (63 L. T. 465) -St George's Society of Montreal y. Nicholla (Q. R. 5 S'. C. 273) ; Uarwood v. Baker (3 ll%°- P- 0. 282) ; Trilje v. Tribe (13 Jur. 793) ; Mtgnault v. Malo (16 L. C. Jur. 288), and Mayrand v. DussauU (38 Can. S. C. R. 460), referred to. (Leave to appeal to Privy Council granted, 15th May, 1914.) Lamoureux v. Craig, xlix., 305. 18. Construction of — Legacy to church committee — Contribution to "building fund" . — Ulterior disposition — Application to pur- jiose intended — Lapse of devise — Art. 964 *'■ C-] — At a time when the congregation of St. Matthew's Presljyterian Church, in Montreal, was heavily encumbered with debt incurred in building the church, a committee was formed to collect contributions to be applied in liquidating the debt by means of a "building fund," and the testatrix made her will by which she bequeathed certain real ■property to that committee. iSeveral years later the committee were relieved of their duty and the building fund ceased to exist, and during the year previous to the death of the testatrix the original debt in respect of which the building fund had been estab- lished was fully paid. There remained, however, at the time of her death balances of debt still due for expenses incurred for other building purposes. In an action to have the bequest declared to have lapsed on account of failure in its ulterior disposi- tion. — Held, afiirming the judgment appealed from (Q. R. 46 S. C. 97), Duff and Anglin, JJ., dissenting, that, in the circumstances of the case, the bequest must he construed as a bounty to the trustees of the church for the purposes of building expenses, in- cluding debts incurred for such purposes subsequent to the construction of the church ; that the motive of the testatrix was not to make a contribution to any particular fund, but to 'benefit the congregation -in respect to its building liabilities generally, and that the legacy did not lapse in consequence of the "building fund" having ceased to exist and the extinction of the debt in regard to which contributions to that fund were to be applied. — Per Duff and Anglin, JJ., dis- senting. — It was of the essence of the gift that it should be capable, at the time of the death of the testatrix, of being applied in furtherance of the specific purpose for which the "building fund" had been instituted and. that having become impossible, it lapsed under the provisions of article 964 of the Civil Code. Pringle v. Anderson, 1., 451. 19. Construction — Devise of income ■ — Trust — Codicil — Postponement of division — Maintenance of children.] — The will of S. contained the following provision : "I direct my said trustees to pay to my wife Annie Singer, during the term of her natural life and as long as she wiU remain my widow, the net annual income arising from my estate for the maintenance of herself and our children ; should, however, my wife re- marry then such annuity shall cease." — - Held, that Annie Singer was entitled to said income during her widowhood for her own 1247 WINDING-UP ACT. 1848 use aljsolutely, but subject to an obligation to provide, in her discretion, for the main- tenance of the children, which discretion would not be controlled nor interfered with so long as it was exercised in good faith. Sucb obligation did not extend to a child married or otherwise forisfamiliated. — Per Anglin, J. — ^The jurisdiction to determine the good or bad faith of the widow on an originating notice is questionable. — Another clause of the will directed the trustees "to pay to each of my sons who shall reach th& age of thirty years a sum equal to half that: portion of my estate to which such son ia entitled under this my will upon the death of his mother. . . . Such payment to be considered as a loan from the estate." A codicil added several years later contained this provision : "I hereby further direct that my real property shall not be divided among the beneficiaries as directed by my will until after the lapse of ten years from my death." — Held, that the division so post- poned was not the final division to be made on the death or marriage of the widow ; that it had the effect of postponing any advance to a son thirty years old of half his ^portion until the ten years from the tes- tator's death had expired so far as such ad- vance would necessitate the sale or mort- gage of any of the real estate. — Judgment of the Appellate Division (33 Ont. L. R. 602), afiirmed. Singer v. Singer, lii., 447. 20. Construction — Estate for life — Power of appointment — Trust.] — ^A will devised all the testator's real and . personal property to his two daughters (naming them) upon trust as follows: — To make certain pay- ments and. then "to hold all my property in lots eight and nine ... for my said daughters for themselves and to make such disposition thereof from time to time among my children or otherwise as my said daugh- ters decide to make, they my said daughters in the meantime to have all the rents and profits therefrom." — Held, affirming the judgment of the Appellate Division (34 Ont. L. R. 33), Fitzpatrick, C.J. and Idington, J., dissenting, that the said two daughters took a beneficial life interest in -the property; and that the words "or otherwise" where they occur gave them an unfettered power of disposition which they could exercise in favour of any person, including themselves. Meagher v. Meagher, liii., 393. 21. Execution of will — Mismanagement of estate — Fraud against creditors of tenefl- ciary. Union Bank of Canada v. Brigham, Cout. Cas. 355. 22. Construction of will — Executors and trustees — Power of appointment — Appeal — Jurisdiction — Matter in controversy — Special leave to appeal refused. Bradley v. Saunders. Cout. Cas. 380. 23. Doweress — Title to land — Prescrip- fiQ„, — Statute of Limitations — Beirs-at-law Parol evidence — Residuary devise, 0am. Cas. 338. See Title to Land. 24. Trust for 'benefit of son — Discretion of executor — Death of beneficiary — Funds not disposed of. In re Rispin, Canada Trust Co. V. Davis, xlvi., 649. WINDING-UP ACT. 1. Joint stock company — Contributories — Consideration for shares.] — H. and others, interested as creditors and otherwise in a struggling firm, agreed to purchase the lat- ter's assets and form a company' to carry on its business and they severally sub- scribed for stock in the proposed company to an amount representing the value of the business after receiving financial aid which" they undertook to furnish. A power of at- torney was given to one of the parties to purchase said assets, which was done, pay- ment being made 'by the discount of a note for $2,000 made 'by H. and indorsed by an- other of the parties. The company having been formed the said assets were transfer- red and the said note waS retired by a note of the company for $4,000 indorsed by H., which he afterwards had to pay. H. also, or the company in Buffalo of which be was manager, advanced money to a considerable amount for the company which eventually went into liquidation. After the company was formed, in pursuance of the original agreement between the parties, stock was issued to each of them as fully paid np ac- cording to the amounts for which they re- spectively subscribed, and in the winding-up proceedings they were respectively placed on the list of contributors for the total amount of said stock. The ruling of the local master in this respect was affirmed by a judge of the High 'Court and by the Court of Ap- peal. — Held, reversing the judgment of the Court of Appeal, Davies and Nesbitt, JJ., dissenting, that as all the proceedings were in good faith and there was no misrepre- sentation of material facts, and as H. and S. bad paid full value for their shares, the agreement by which they received them as ■fully paid up was valid and the order mak- ing them contributories should be rescinded. — Held, per Davies and Nesbitt, JJ., that as they did not pay cash or its equivalent for any portion of the shares as such the order should stand. Hood v. Eden, xxxvi., 476. 2. Appeal per saltiim — Winding-up Act — Application under s. 16 — Defective proceed- ings.] — ^Leave to appeal per saltum, under s. 26 of the Supreme Court Act, cannot be granted in a case under the Dominion Wind- ing-up Act. An application under s. 76 of the Winding-up Act, for leave to appeal from a judgment of the Supreme Court of New Brunswick was refused where the judge had made no formal order on the petition for a winding-up order and the proceedings be- fore the full court were in the nature of a reference rather than of an appeal from his decision. In re Gushing Sulphite Fibre Co., xxxyi., 494. 3. Appeal — Jurisdiction — Discretionary order — Stay of foreclosure proceedings — Final judgment — Controversy involved — R. S. C. c. 129, s. 76— R. S. C, 1886. c. 135, s. 28.] — Leave to appeal to the Supreme Court of Canada under the S'venty-sixth s. of the "Winding-up Act" can be granted only where the judgment from which the appeal is sought is a final judgment and the amount involved exceeds two thousand dollars. A judgment setting aside an order, made under the "Winding-up Act," for the 1249 WITXESS. 1250 postponement of foreclosure proceedings and directing that such proceedings should be continued is not a final judgment within the meaning of the Supreme Court Act, and does not involve any controversy as to a pecuniary amount. Re Gushing Sulphite Fibre Co., xxxvii., 173. 4. Appeal — Jurisdiction — Winding-up order — Leave to appeal — Amount involved —R. S. C. c. 129, s. 76.]— In a case under the "Winding-up Act," R. S. C. c. 129, an appeal may be taken to the Supreme Court of Canada by leave of a judge thereof if the amount involved exceeds $2,000. — Held, that a judgment refusing to set aside a wind- ing-up order does not involve any amount and leave to appeal therefrom cannot be granted. Gushing Sulphite Fibre Go. v. Gushing, xxxvii., 427. 5. Insolvent bank — Appointment of liqui- dators — Right to appoint another bank — Discretion of judge.'] — ^The Winding-up Act provides that the shareholders and creditors of a company in liquidation shall severally meet and nominate persons who are to be appointed liquidators, and the judge having the appointment shall choose the liquidators from amonjg such nominees. In the case of the Bank of Liverpool the judge appointed liquidators from among the nominees of the creditors, one of them being the defendant bank. — Held, affirming the judgment of the Court below, that there is nothing in the Act requiring both creditors and sharehold- ers to be represented on the board of liqui- dators ; that a bank may be appointed liqui- dator ; and that if any appeal lies from the decision of the judge in exercising his judgment as to the appointment, such dis- cretion was wisely exercised in this case. Forsyth v. Bank of Nova Scotia; In re Bank of Liverpool (xviii., 707), Cam Cas. 209. 6. Appeal — Jurisdiction — Matter in con- troversy — Discretionary order — R. S. G. e. 129, s. 16 — Winding-up insolvent bank.] — In order to give a right to appeal under s. 76 of the "Winding-up Act," the existing real value of the matter in controversy must be shewn to exceed $2,000 ; mere supposititious valuations cannot be accepted. — ^Where no useful result can be obtained as the result of an appeal, the discretion of the judge should be exercised by the refusal of special leave to appeal under the "Winding-up Act." — (Note. — Cf. Gushing Sulphite Fibre Co. v. Gushing (37 Can. S. C. R. 427). See also In re Central Bank of Canada (28 Can. S. C. R. 192). Hogaboom v. Central Bank of Canada, Cout. Cas. 119. 7. "Winding-up Act" — Leave to appeal — Discretion — Construction of Dominion statutes — Appeal de piano — R. S. C. (1886) c. 129,. s. 76.] — Wh«re an important question respecting the construction of a Dominion statute is involved, the discretion allowed by section seventy-six of the "Winding-up Act" should be exercised, and leave to ap- peal granted, but that Act does not give the right of appealing de piano. The Lake Erie and Detroit River Railway Go. v. Marsh (35 Can. S. C. R. 197), followed. In re Montreal Cold: Storage and Freezing Co.; Ward v. ^i(llin, Cout. Cas. 341. S.C.D.— 40 8. Leave to appeal] — Leave to appeal to the Supreme Court of Canada from a judg- ment in proceedings under the "Winding-up Act" will not be granted, though the amount in controversy exceeds $2,000, if no import- ant principle of law nor the construction of a public Act, nor any public interest is in- volved, especially if the judgment sought to be appealed against appears to be sound. Ontario Sugar Co., xliv., 659. 9. Procedure — Suit in P. E. I. — Winding- up in B. G. — Leave of court of B. G. — R. 8. G. c. 144, ss. 22 and 23.]— Where a trust company incorporated by the Parlia- ment of Canada with headquarters in Van- couver is being wound up in British Col- umbia, leave of the Supreme Court of that province is necessary before suit can be brought in Prince Edward Island against the liquidator and the company to have the latter declared a trustee of moneys deposited with it for investment, for its removal from office and appointment of a new trustee and for the vesting in such new trustee of the securities representing said moneys. Davies, J., dissenting. — Judgment appealed against (24 D. L. R. 554), reversed. Stewart v. LePage, liii., 337. 10. Will — Extension of powers of exe- cutors — Universal legatee — Special legacy — Appeal — - Jurisdiction — Amount in contro- versy — Order to take accounts — Interlocu- tory judgment — Costs, xlvii., 400. See Appeai,. 11. Company in liquidation — Sale of as- sets — Consent to sale of mortgaged ship — Sale by order of court — Mariners' liens — • Sale free from incumbrances — Special fund — Privileged charge — Priority — Valuation of security — Release of mortgage — Marshalling securities — Subrogation, xlviii., 593. See Company. 12. Appeal — Jurisdiction — Time for ap- pealing — Amount in controversy — Construc- tion of statute — "Supreme Court Act," R. S. C, 1906, c. 1S9, ss. 46, 69, 71— "Winding- up Act," B. S. C., 1906, c. 144, ss. 104, 106 — Practice — Affirming jurisdiction — ^lotion in court — Discretionary order by judge, liii., 128. See Appeal. ■WINDOWS. Title to land — Servitude — Construction of deed — Plan of subdivision — Reservations — "Representatives" — Owners par indivis — Common lanes — Right of passage — Private wall — Windows and' openings on line of lane —Arts. 533-538 C. C, xxxvi., 618. See Seevitttde. W^ITNESS. Action by executors — Interested witness- Corroboration, xxxiv., 261. See Evidence. 1251 WOEDS AND PHEASES. 1252 AVOBDS AND PHRASES. a. "Accident insurance," xxxv., 266. See Evidence. b. "All ways used and enjoyed," Cam. Cas. 352. See Easement. c. "Acquire," xxxvi., 42. See Railways. d. "All aboard," Cam. Cas. 589. See Negligence. e. "Assent," xl., 458. See FOEGEET. f. "Assigns," xxxix., 567. See CONTBACT. g. "At large upon the highway or other- wise," xxxix., 251. See Negligence. h. "At owner's risk,'' Cam. Cas. 66. See Caeeiees. 1. "Accident in course of employment," xllx., 136. See Negligence. 2. "Accepted orders." Whyte v. National Paper Co., li., 162. See CONTBACT. 13. "Comment." Price V. Chicoutimi, li., 179. See Libel. 14. "Consistent conditions." Browning v. Massoni lii., 379. See CONTBAOT. 15. "Construction," xlv., 355. See Bailwats. 16. "Construct," xxxvi., 42. See Railways. 17. "Criminal case," xxxvii., 394. See Canada Tempebance Act. 18. "Current year," xxxix., 151. See Municipal Cobpoeation. 19. "Doing business in the City of HoM-. fax," xxxix., 174. ' See Assessment and Taxes. 20. "During trial," xl., 272. See Ceiminal Law. 21. "Damages to property injuriously af- fected by the construction of a public work." Pigott V. The King, liii., 626. See- Ceown. 22. "Damages resulting." Dumont v. Fraser, xlviii., 137. See RiVEES and Stbeams. 3. "Actually delivered." Montreal v. Mont- real Light, etc., xlii., 431. See Contbact. 4. "Adjoining." Pouliot v. Fraserville, liv., 310. See Mui^icipal Cobpoeation. 5. "And," xli., 607. See Contbact. 6. "Baggage," Cam. Cas. 66. See Cabeiebs. 7. "Branch," xl., 431. See Railways. 8. "Block and staff" system, xlix., 518. See Tramways. 9. "Business." Ontario Bank v. McAllis- ter, xliii., 338. See Banks and Banking. 10. "Carrying on business," xlviii., 208. See Company Law. 11. "Carrying on business." Lunde Re- frig. Co. V. Sask. Creamery, li., 400. See Company. 12. "Chattel mortgage" does not mean a security receipt given under the Bank Act. Ouim'ond v. Fidelity Phenix Fire Ins. Co., xlvii., 216. And see Insurance, Fibe. 23. "Deposit," xlix., 360. - See Vendoe and Puechasee. 24. "Detached dwelling house." Pearson V. Adams, 1., 204. See Deed. 25. "Dig for minerals." Dome Oil V. Alberta Drilling Co., lii., 561. 26. "Double-headers," xlix., 518. See Team ways. 27. "Duly filed." O. T. Ry. Co. v. Brit.- Am. Oil Co., xliii., 311. See Statute. 28. "Dressed on one side only,'' xlvii., 130. See Customs. 29. "Dwelling house." Mahomed v. Anchor Fire, etc., xlviii., 546. See Insubance, Fibe. 30. "Every other company," xxxix., 174. See Assessment and Taxes. 31. "Eactension," xl., 431. See Railways. 32. "Final judgment," xlvii., 559. See Appeal. 33. "Final judgment." Stephenson v. Oold Medal Fur. Mfg. Co., xlviii., 497. See Appeal. 1253 WORDS AND PHEASES. 1254 34. "Flottage," xl., 1. See RiVEKS and Stkeams. 35. "F. 0. B.r xli., 453. See Sale. 36. "Free grant,'' xlv., 170. See Statute. 37. "Greek Catholic Church," xxxvii., 177. See Title to Land. 38. "Heirs," xxxix., 567. See CONTBACT. 39. "Have not otherwise heen guilty of negligence." Leger v. The King, xliii., 164. See Statute. 40. "Seat of passion," xlvii., 1. See Criminal Law. 41. "Highway." xlii., 613. Gf. T. R. V. Toronto, Railways. 42. "If the subject of insurance he per- sonal property, and he or hecome encumhered ly a chattel mortgage," xlvii., 216. See INSUEANCE, PlEE. 43. "Indian. liii., 172. ' Attorney-Gen. v. Giroux, See Indians. Attorney-Gen. v. Gir- 44. "Indian lands oux, liii., 172. See Indians. 45. "Inevitable accident.'' Phelan V, G. T. P. R. R. Co., li., 113. See Railways. 46. "In all ca^es to which this Act ap- plies." Lamontagne v. Quebec B. R. Light, Heat and Power Co., 1., 423. See Negligence. 47. "Insurance on life," xxxv., 266. See Evidence. 48. "Interested person," xxxvii., 354. See Railways. 49. "Interested or affected," xxxvii., 354. See Railways. 50. "Interest in land." Be Heinne Fleit- man, etc., lii., 15. See Assessment and Taxes. 51. "Interest in land." Yockney v. Thomp- son, 1., 1. See Registky Laws. 52. "Interested or affected." Toronto R. B. V. Toronto, liii!, 222. See Railways. 53. "Interesfted parties." B. C. Electric R. R. Co. v.- y. V. irf E. R. R. & Nav. Co., etc., xlviil., 98. See Railways. 54. "In pursuance of and by authority of this act." Greer v. C. P. R., li., 338. See Railways. 55. "Judicial proceeding,'' xlvii., 550. See Appeal. 56. "Judicial proceeding.'' Ryley Hotel Co., xliii., 646. See Appeal. Finseth v. 57. "Land Commissioner," xxxlx., 169. See Specific Peefoemance. 58. "Land." Southern Alberta v. Rural McLean, liii., 151. See Assessment and Taxation. 59. "Land damages^ Sydney, 1., 6. See Railways. Burt V. City of 60. "Last voyage," xl., 45. See Shipping. 61. "Lay out," xxxvi., 42. See Railways. 62. 319. "Listing." Peacock v. Wilkinson, li.. See Beokeb. 63. "Longshoreman," xxxix., 311. See Negligence. 64. "Look and listen,'' xxxviii., 94. See Negligence. Attorney-Gen. v. 65. "Located Indian Giroux, liii., 172. See Indians. 66. "Lodging house.'' Mahomed v. Anchor Fire, etc., xMii., 546. See Insurance, Fiee. 67. "Lot," xliv., 364. See Assessment and Taxes. 68. "Margins," xlix., 545. See Broker. 69. "Matter in controversy," xlix., 163. See Appeal. 70. "Matter or judicial proceeding." Svens- son V. Bateman, xlii., 146. See Appeal. 71. "Member in good standing," xliv., 145. See Insurance, Life. 72. "Mineral." Dome Oil v. Alberta Drill- ing, lii., 561. See Company. 73. "Digging for minerals," lii., 561. See Company Law. 74. "Moneys," xxxix., 122. See Wn-L. 1255 WOEDS AND PHEASES. 1256 75. "Municipal affairs.'' Ont. v. Domin- ion, xlii., 211. See Constitutional Law. 76. "Land"— "Owner" — "Occupant," liii., 151. See Assessment and Taxation. 77. "Not less than $50," xxxviii., 394. See Canada Temperance Act. 78. "Necessary," xlix., 621. See Contract. 79. "Not further manufactured," xlvii., 130. See Customs. 80. "Occupant." Southern Alberta v. Rural McLean, liii., 151 See Assessment and Taxation. 81. "Office," xxxviii., 382. See Criminal Law. 82. "On or crossing the track," xxxix., 593. See Railways. 83. "On a public work." Chamberlain v. The King, xlii., 350. See Public Work. 84. "On change," xlix., 545. See Broker. 85. "On or about." Leonard & Sons v. Eremer, xlviii., 518. See Sale. 86. "Or upon demand," xxxix., 274. ^ See Contract. 87. "Other matter," xxxv., 581. See Constitutional Law. 88. "Otherwise," xxxix., 251. See Negligence. 89. "Overdue," xxxix., 625. See BiLLS/AND Notes. 90. "Operation," xlv., 355. See Railways. 91. "Operation of railway." Greer V. 0. P. R., li., 338. See Railways. 92. "Or," xli., 607. See Contract. 93. "Orientals," xlix., 440. See Constitutional Law. 94. " Originating summons." Finseth v. Ryley Hotel Co., xliii., 646. See Appeal. 95. "Or otherwise." Meagher v. Meagher, liii., 393. See Will. 96. "Owner," xlv., 170. See Statute. 97. "Owner," xliv., 86. See Lien. 98. "Owner." Southern Alberta v. Rural McLean, liii., 151. 99. "Owner." Marshall Brick Coi-v. York Farmers' Col. Co., liv., 569. See Lien. 100. "Partnership," xlix., 60. See Partnership. 101. "Party interested," xli., 552. See Railways. 102. "Perils of the seas," Cam. Cas. 86. See Insurance, Marine. 103. "Person interested," xxxvii., 232. See Railways. 104. "Person." Attorney-Gen. v. Giroux, liii., 172. 105. "Place," xxxviii., 382. See Criminal Law. 106. "Proprietor of the soil," xl., 647. See Mines and Mining. 107. "Public work," xxxviii., 501. See Contract. 108. "Public work," xl., 431. See Railways. 109. "Product of the forest," xlix., 394. See Banks and Banking. 110. "Products thereof," xlix., 394. See Banks and Banking. 111. "Property on public work." Olmstead V. The King; Pigoit v. The King, liii., 450. See Crown. 112. "Provincial objects." Bonanza, Creek Gold Mining Co. v. The King, 1., 534. See Constitutional Law. 113. "Provincial objects," xlviii., 331. See Constitutional Law. 114. "Public harbours." Attorney-Gen. v. Ritchie, Hi., 78. See Constitutional Law. 115. "Public way or means of communi- cation." G. T. R. v. Toronto, xlii., 613. See Railways. 116. "Railway," xxxv., 48. . ^ See Railways. 117. "Representatives," xxxvi., 618. See Title to Land. 1257 WORKMEN'S COMPENSATION ACT. 1258 118. "Railway," xlvii., 216. See INSUBANCB, FlEE. 119. "Real estate agent." Peacock v. Wilk- inson, li., 319. See Broker. 120. "Real property," xlv., 170. See Statute. 121. "Reserve." Attorney-Oen. v. Oiroux, lli., 172. See Indians. 122. "Right to pass over for cattle, etc." Canada Cement v. Fitzgerald, liii., 263. See Easement. 123. "Sawn planks," xlvii., 130. See Customs. 124. "Secretary," xlix, 541. See Bills of Sale. 125. "Senior officer present at the local- ity," xlix, 148. See MiLiTLi. 126. "Sizing," xlvii., 130. See Customs. 127. "Shur-on," xxxix., 286. See Teade Marks. 128. "Sold and delivered a worm," Gout. Cas. 110. See Habeas Corpus. still and 129. "Sole and final judge," xl., 281. See Deed. 130. "Staz-on," xxxix., 286. See Trade Marks. 131. "Stipulations," xxxviii., 501. See Contract. 132. "Special Act." O. T. B. v. Toronto, xlii., 613. See Railways. 133. "Special Act." City of Hamilton V. Toronto, Hamilton and Buffalo R. R. Co., 1., 128. See Railwats. 134. "Stored or kept," xli., 491. See Insurance, Fire. 135. "Stored and kept." Evangeline Fruit V. Provincial Fire Ins. Co., .li., 474. See Insurance, , Fire. 136. "Suistantial wrong," xlvii., 1. See Criminal Eaw. 137. "Sulstantive right in controversy." Wood V. Grand Valley R. R. Co., li., 283. See Appeal. 139. "Sustained by reason of the con- struction or operation of the railway " C P. R. V. Carr, xlviii., 514. See Railwats. 140. "Territory of the Dominion," xxxvi.. 42. See Railways. 141. "Terrain," xliv., 364. See Assessment and Taxes. 142. "That no railway passes through the lot on which said lumber is piled, or within ZOO feet," xlvii., 216. See Insurance, Fire. 143. " Thing demanded.' Oenge, liii., 353. See Appeal. Beauvais v. 144. "Time of the essence of the contract," xlix., 14. See Specific Performance. 145. "Time to time," from. Quebec v. Ontario, xlii., 161. See Arbitration and Award. 146. "Total exemption from taxation," xlvii., 416. See Municipal Corporation. 147. "Tramway," xxxv., 48. 148. "Unable to deliver." Leonard . Leave to appeal to Privy Council refused, 20th Mar., 1914. Companies, In re (48 Can. S. C. R. 331). On appeal to Privy Council, answers were given to the questions submitted to the Su- preme Court of Canada (1916, 1 A. C. 598). CoNMEE V. The Securities Holding Co. ET AL. (38 Can. S. C. R. 601). Petition for special leave to appeal to Privy Council dis- missed with costs, 19th July, 1907; 49 Can. Gaz. 391. CooTE V. Borland (35 Can. S. C. R. 282). Leave to appeal to Privy Council refused with costs, 5th July, 1905. CoRNWAiLis, Municipality of r. Can. Pao. Rlt. (19 Can. S. C. R. 702) ; ap- proved in Rex v. Can. Pac. Uly. Co. (1911, A. C. 328). Cornwall, Township of, v. New York & Ottawa Rly. (52 Can. S. C. R. 466). Leave to appeal to Privy Council granted, 27th July, 1916. Appeal dismissed with costs, June, 1917. County of Carleton v. City op Ottawa '(41 Can. S. C. R. 552). Leave to appeal to Privy Council refused, 22nd Feb., 1910. Gushing v. Knight (46 Can. S. C. R. 555). Leave to appeal to Privy Council re- fused, 9th Dec, 1912. Pushing Sulphite Fibre Co. v. Cush- ING ET AL. (37 Can. S. C. R. 427). Leave to appeal to Privy Council refused, 16th July, 1906. D. David v. Swift (44 Can. S. C. R. 179). On a judgment, subsequent to the decision of the Supreme Court of Canada, by the Court of Appeal for British Columbia, an appeal was taken direct to the Privy Coun- cil. The appeal was dismissed with costs, 18th June, 1912. Day v. The Crown Grain Co. (39 Can. S. C. R. 258). Appeal to Privy Council dismissed with costs ([1908] A. C. 504). DO-MINION Cartbidre Co. v. McArthub (31 Can. S. C. R. 392). Arguments on ap- peal to Privy Council noted (43 Can. Gaz. at p. 370) ; judgment of the Supreme Court reversed, and that of Court of King's Bench, appeal side, restored ([1905] A. C. 72). ^ Dominion Creosoting Co. v. Nixon (55 Can. S. C. R. 303) . Leave to appeal re- fused, June, 1917. Dumont (,-. Fraser (48 Can. S. C. R. 137). Leave to appeal to Privy Council granted, on terms as to costs, loth July, 1913. Appeal to Privy Council dismissed with costs, 27th July, 1914. East Hawkesbury, Township of, v. Township of Lochiel (34 Can. S. C. R. 513). Leave to appeal to Privy Council re- fused, July-Aug., 1904. Electrical Development Co. v. Town- ship of Stamford (not reported). Leave to appeal to Privy Council was refused, 4th Aug., 1914. Equity Fire Ins. Co. v. Thompson (41 Can. S. C. R. 491). Leave to appeal to Privy Council granted 15th July, 1909. — Ai^peal to Privy Council allowed with costs, 15th July, 1910." EwiNG r. The Dominion Bank (35 Can. S. C. R. 133). Leave to appeal to Privy Council refused with costs ( [1904] A, C. 806]. F. Farbell d. Manchester et al. (40 Can. S. C. R. .3.39). Leave to appeal refused by Privy Council, 24th Feb., 1909. Fealick v. Grand Teunk Rly. Co. (43 Can. S. C. R. 494). Leave to appeal to Privy Council was refused, 25th July, 1910. Franco-Canadian Mortgage Co. v. Greig (55 Can. S. C. R. 395). Leave to appeal refused. G. Gaynor and Greene v. The United States of America (36 Can. S. C. R. 247). Petition for leave to appeal (41 Can. Gaz. 415) to Privy Council abandoned; applica- tion dismissed with costs, 26th July, 1905. GiBB V. The King (52 Can. S. C. R. 402). Leave to appeal to Privy Council granted, 7th July, 1916. Geanby, Village of, v. M^naed (31 Can. S. C. R. 14). I Leave to appeal to Privy Council was refused, 13th July, 1901. Grand Teunk Pacific kly. Company's Bonds, In re (42 Can. S. C. R. 505). Leave to appeal to Privy Council granted, 18th Mar., 1910. Appeal to Privy Council allowed, 2nd Nov., 1911. Grand Trunk Pacific Rly. Co. v. B. C. Expeess Co. (55 Can. S. C. R. 328). Leave to appeal granted, June, 1917. Grand Teunk Pacific Rly. Co. v. City OF Fort William (43 Can. S. C. R. 412). Leave to appeal to Privy Council granted 8th Nov., 1910. Appeal to P"vy CouncU allowed with costs, 2nd Nov., 1911 (1912, A. C. 224). 1327 APPENDIX B. 1328 Geand Tkunk Railway Co. v. Attorney- Geneeai, op Canada ([1907] A. C. 65). Sea "Railway Act Amendment Act, 1904," infra. Geand Trunk Rly. Co. v. McDonald (not reported). Leave to appeal to Privy Council refused, 25th July, 1910. Grand Trunk Railway Co. of Canada V. Robertson (39 Can. S. C. R. 506). Spe- cial leave to appeal to Privy Council granted, 8th March, 1908 (50 Can. Gaz. 591) ; appeal dismissed with costs, 17th Feby., 1909 (1909 A. C. 325). Grand Trunk Rly. Co. v. City of To- ronto (Viaduct Case) (42 Can. S. C. R. 613). Appeal to Privy Council dismissed with costs (1911, A. C. 461). Geenier v. The King. See The Queen V. Geeniee (30 Can. S. C. R. 42). Leave to appeal to Privy Council refused, 21st July, 1908. GUIMOND ET AL. V. FIDELITY PhOENIX Ins. Co. (47 Can. S. C. R. 216). Leave to appeal to Privy Council refused, 28th Nov., 1913. H. Hambueg-Amebican Packet Co. v. The King (33 Can. S. C. R. 252). Leave to ap- peal to Privy Council granted, 20th July, 1903 (41 Can. Gaz. 415), and, on 28th July, 1906, the order granting such leave was re- scinded and the appeal dismissed. Hanson v. Village of Geand'MSee (33 Can. S. C. R. 50). Appeal to the Privy Council dismissed with costs, August, 1904, (43 Can. Gaz. 439 ; [1904] A. C. 789) . Hawley v. Weight (32 Can. S. C. R. 40). Leave to appeal to Privy Council re- fused, August, 1904. Hay v. Coste (not reported) . Leave to appeal to Privy Council refused, 25th July, 1916. Heinzb, re ; Fleitman v. The King (52 Can. S. C. R. 10). Leave to appeal to Privy Council refused, 3rd Feb., 1916. Hesseltine et al. v. Nelles (47 Can. S. C. R. 320). Leave to appeal to Privy Council granted, 18th July, 1913. Appeal dismissed with costs, 20th Oct., 1914 (1915, A. C. 355). Hitchcock v. Sykes (49 Can. S. C. R. 463). Application for special leave to ap- peal to Privy Council refused with costs, 23rd July, 1914. Hoene 0. Gordon (42 Can. S. C. R. 240). Leave to appeal to Privy Council granted, 1st Dec, 1909. Appeal to Privy Council allowed with costs, 29th July, 1910. Howaed v. Millek (not reported). Leave to appeal to Privy Council granted, 7th July, 1913. Appeal to Privy Council al- lowed with costs, 6th Nov., 1914 (1915, A. C. 319). Hughes v. Noetheen El. & Manufac- TUEING Co. (50 Can. S. 0. R. 626). Leave to appeal to Privy Council refused, 26th July, 1915. I. Impeeial Book Co. v. Black (35 Can. S. C. R. 488) . Leave to appeal to Privy Coun- cil refused with costs, 24th May, 1905. "INSCBANOE Act," 1910, In ee (48 Can. S. C. R. 260). Leave to appeal to Privy Council granted, 27th Jan., 1914. On ap- peal to P. C. the answers to questions sub- mitted to Supreme Court of Canada were approved (1916, 1 A. C. 588). Ieedale v. Loudon (40 Can. S. C. R. 313). Leave to appeal to Privy Council re- fused, 9th July, 1909. J. James Bay Railway Co. v. Aemstrong . (38 Can. S. C. R. 511). Special leave to appeal to Privy Council was granted on terms, 19th July, 1907. James Bay Rly. Co. v. Armstrong (38 Can. S. C. R. 511). Appeal to Privy Coun- cil dismissed with costs, 30th July, 1909. Jamieson v. Harris (35 C^n. S. C. R. 625). Petition for special leave to appeal to Privy Council dismissed with costs, 4th July, 1907. Johnson's Co. v. Wilson (Cout. Cas. 356). Petition for special leave to appeal to Privy Council dismissed with costs, 17th July, 1907. Jones v. Burgess (decided 8th May, 1911, affirming the judgment of the Supreme Court of New Brupswick) . Leave to ap- peal to Privy Council was refused, 23rd Jan., 1912. K. King, The, v. Armstrong (40 Can. S. C. R. 226) . Leave to appeal to the Privy Council refused with costs, 18th July, 1908. King, The, v. Bueeard Power Co. The Privy Council refused to hear an applica- tion by the Atty.-Gen. of Canada for leave to appeal direct from the Exchequer Court of Canada, made on the 15th July, 1909 (see 53 Can. Gaz. 385). Vide supra, Bur- rard Power Co. v. The King. King, The, v. Cotton (45 Can. S. C. R. 469). Leave to appeal to Privy Council granted, 2nd July, 1912. Appeal to Privy Council allowed and cross-appeal dismissed with costs against the Crown, 11th Nov., 1913 (1914, A. 0. 176). King, The, v. The "Kitty**." (34 Can. S. 0. R. 673). Leave to appeal to Privy Council granted, 8th February, 1905 (44 Can. Gaz. 472) ; judgment of the Supreme Court i-eversed, and that of Hodgins, L. J. in Ad., restored, 21st December, 1905 (45 Can. Gaz. 422). 1329 APPEXDIX B. King, The v. Lefeancois (40 Can. S. C. R. 431). Leave to appeal to Privy Councii refused, 18th July, 1908. King, The, v. Teudel (49 Can. S. C. B. 501). Leave to appeal to Privy Council was refused, 20th May, 1914. Kino v. Watlbekg (44 Can. S. C R 208). Leave to appeal to P. C. refused, 11th July, 1911. Kiekpateiok v. McNamee (36 Can. S. C. R. 152). Leave to appeal to Privy Council refused, 4th August, 1905. Klondyke Government Concession r The King (40 Can. S. C. R. 294). Leave to appeal to Privy Council refused with costs, 18th July, 1908. KoHLEK V. Thoeold Nat. Gas (52 Can. S. C. R. 514). Leave to appeal to P. C. refused, 2nd June, 1916. L. Laidlaw v. Vaughan-Rhys (44 Can. S. C. R. 458). Leave to appeal to P. C. re- fused, 29th July, 1911. Lamoueeux v. Ceaig (49 Can. S. C. R. 305) . Leave to appeal to Privy Council was granted, 15th May, 1914. Lapointe ■;;. Messier (49 Can. S. C. R. 271). Leave to appeal to Privy Council was granted, 7th July, 1914. Laein v. Lapointe (42 Can. S. C. R. 521) . Leave to appeal to Privy Council granted, 16th Feb., 1910. Appeal allowed with costs, 28th June, 1911 (1911, A. C. 520). Leahy v. Town of North Sydney (37 Can. S. C. R. 464). Leave to appeal to Privy Council refused, 17th July. 1906. LiscoMBE Palls Gold Mining Co. v. Bishop (35 Can. S. C. R. 539). Leave to appeal to Privy Council refused, 17th May, 1905. Long v. Toeonto Rly. Co. (not reported). Leave to appeal to Privy Council was re- fused, 4th Aug., 1914. LoviTT V. The King (43 Can. S. C. R. 106). Leave to appeal to Privy Council was granted, 15th July, 1910. Appeal to Privy Council allowed with costs, 2nd Nov., 1911. Mc. McGillivkay v. Kimbee et al. (52 Can. S. C. R. 146). Leave to appeal to Privy Council granted, 14th Apr., 1916. McLean v. The King (38 Can. S. C. R. 542). Appeal to Privy Council dismissed with costs, 10th July, 1908. McLellan v. Powassan Lumbee Co. (41 C.in. S. C. R. 249). Special leave to appeal granted by Privy Council, 29th June, 1909. 1330 Appeal to Privy Council dismissed by con- sent, 8th JIareh, 1911. MoMuLLiN V. The Nova Scotia Steel AND Coal Co. (39 Can. S. C. R. 593). ii?^^^,,*^° appeal to Privy Council refused, 12th May, 1908. McNeil v. Cullen (35 Can. S. C. R. 510). Leave to appeal to Privy Council re- fused, 18th July, 1905. McNichol v. Malcolm (39 Can. S. C. R. 265). Leave to appeal to Privy Council re- fused, 12th March, 1908. McPheeson v. Geand Council Provin- cial Workmen's Ass. (Not yet reported). Leave to appeal to Privy Council refused, 4th Aug., 1914. MoViTY V. Teanouth (36 Can. S. C. R. 455). Judgment of the Supreme Court re- versed with costs ([1908] A. C. 60). M. Mackenzie, Mann & Co. v. Eastekn Teust Co. (not reported). Leave to appeal to Privy Council was granted, 4th Aug., 1914. Appeal to Privy Council allowed with costs, 27th Apr., 1915. Mackenzie v. Monarch Life Ins. Co. (45 Can. S. C. R. 323). Leave to appeal to Privy Council granted, 17th May, 1912. Appeal to Privy Council allowed, 17th Oct., 1913. Maclaeen v. Atty.-Gen. foe Que. etal. (46 Can. S. C. R. 656) . Leave to appeal to Privy Council granted, 16th July, 1912. Appeal to Privy Council allowed with costs, 28th Jan., 1914. (1914, A. C. 258). Maddison v. Emmebson (34 Can. S. C. R. 533) . Appeal to Privy Council dismissed, no costs allowed, 27th July, 1906 (47 Can. Gaz. 424). Malleoy v. Winnipeg Joint Terminals. (53 Can. S. C. R. .523). Leave to appeal tu Privy Council refused, 11th Dec, 1916. y "JIaeeiage Laws," In ee (46 Can. S. C. R. 132) . The judgment of the Supreme Court of Canada was affirmed by the Privy Council, 29th July, 1912 (1912, A. C. 880). See, 59 Can. Gaz. pp. 531, 61S. 658. Mayeand v. Dussault (38 Can. S. C. R. 460). Petition for special leave to appeal to Privy Council dismissed with costs, 18th July, 1907. Meekee v. Nicola Valley Lumber Co. (55 Can. S. C. R. 494). Leave to appeal refused, February, 1918. Meloche v. DfiGUiEE (34 Can. S. C. R. 24). Leave to appeal to Privy Council re- fused, March, 1904. Midland Navigation Co. r. Dominion Elevatob Co. (34 Can. S. C. R. 578). Leave to appeal to Privy Council refused, July, 1904. 1331 APPENDIX B. 1332 JIiLLEK V. Grand Teunk Railway Co. (34 Can. S. C. R. 45). Judgment of die Supreme Court reversed with costs ( [1901!] A. C. 187). Montcalm, The, SS. v. The SS. Keon- prinz-Olav (not reported),. Security for an appeal to the Privy Council was approved on the 14th Aug., 1912. Consolidated ap- peals to Privy Council allowed with costs, 2nd Aug., 1913. Montreal, City of, v. Beauvais (42 Can. S. C. R. 211). Leave to appeal to Privy Council refused with costs, 1st Jec, 1909. Montreal, biTY of, v Cantin (35 Can. S. C. R. 223). Judgment of the Supreme Court affirmed ([1906] A. C. 241). Montreal Light, Heat & Power Co. v. Regan (40 Can. S. C. R. 580). Leave to appeal to Privy Council refused with costs, 20th July, 1909. Montreal, Citx of, v. Montreal Street Railway Co. (34 Can. S. C. R. 459). Judgment of Supreme Court reversed, and that of the Court of King's Bench, Appeal Side, restored, 14th Novemb f^^ Bate V. Can. Pac. By. Go. (Cam. Cas. 10) « '; Bateman, Svensson v. (xlii. 146) ^ ' Bateman v. Scott (liii. 145) • • ■; J^ Battle V. Willox (xl. 198) • • • 26o, ., , Bazinet v. Gadomy (Mast. S. C. Prac. 103) ■ • • • Bazin, Ouimet v. (xlvi. 502) 250' 1"! 1340 IIs^DEX TO XAMES OF CASES. PAGE. Beach v. The King (xxxvii. 259) 374, 611, 949 Beamish v. Eichardson & Sons (xlix. 595) 175, 932 Beaton, Mclsaac v. (xxxvii. 143) 1175, 1208, 1241 Beatty v. Mathewson (xl. 557), 317; (Cam. Prac. 497) . . .914, 1061, 1162 Beauchamp, Banque d'Hochelaga v. (xxxvi. 18).... 393, 548, 814 Beauchemin v. Armstrong (xxxiv. 285) 49, 328 Beauvais, City . of Montreal v. (xlii. 211) 249, 707 Beauvais v. Gauge (liii. 353) 58 Beck V. Canadian Northern Eailway Co. (xlvii. 397) 784 Beck Manufacturing Co. v. Ontario Lumber Co. (Cout. Cas. 422); (Cam. Prac. 286) 114, 576 Beck Manufacturing Co. v. Valin and Ontario Lumber Co. (xl. 523) 648 Beckett, Grand Trunk Ey. Co. v.' (Cam. Cas. 228) 780 Bedard, Prevost v. (li. 149, 629) 319, 584, 646 Beique, Morgan v. (xxxvii. 303) 334, 1005, 1058, 1079 Beique, Rutland Eailroad Co. v. (xxxvii. 303) 1005, 1058, 1079 Beique, "White v. (xxxvii. 303) 1005, 1058, 1079 Beland, Laine v. (Cam. Prac. 454) 43 Belanger v. Montreal Water and Power Co., (1. 356) 285, 704 Belanger, Gagnon v. (liii. 204) '. : 691, 1174 Belanger v. The King (iiv. 265) '. .353, 533 Bell V. Grand Trunk Eailway Co. (xlviii. 561) .' 463, 997 Bell, "Winnipeg Electric St. Ey. Co. v. (xxxvii. 515) 789, 1196 Bell Bros. v. Hudson Bay Ins. Co. (xliv. 419) 280, 5^7, 1121 Bell Telephone Co., IngersoU Telephone Co. v. (liii 583) 969 Bellew, Provident Savings Life Ass. Soc. v. (xxxv. 35) . . .272, 566 Benallack v. Bank of B. W. America (xxxvi. 120) . . .142, 396, 548 Bennett v. Havelock Electric Light Co. (xlvi. 640) ; (Cam. Prac. 278) 61 Bent, Miller v. • (Cam. Prac. 37) 80 Bentley v. Nasmith (xlvi. 477) 177, 930, 1230 Bergeron, Periard v. (xlvii. 289) 471, 1052 Bergklint, "Western Canada Power Co. (1. 39) 747 Bergklint, "Western Canada Power Co. v. (Iiv. 28'5) 660, 737 Berlin, Town of, v. Berlin and Waterloo Street Eailway Co. (xlii. 581) '..... 1147 Berlin and Waterloo Street Eailway Co., Town of Berlin v. (xlii. 581) 1147 Berube, Cantin v. (xxxvii. 627) 11, 610, 1186 "Bielman," The "C. P.," v.. Cadwell (Cout. Cas. 405) .... .34, 82 Bigelow V. Craigellachie Glenlivet Distillery Co. (xxxvii. 55) 296, 1037 Bigelow V. Graham (xlviii. 512) Billings V. Cassidy (Cam. Prac. 1) 80 Bing Kee and Lung Chung v. Yick Chong (xliii. 334) 612; (Cam. Prac. 444) 891 Birabin, Hotte v. (xxxv. 477) 652, 1240 Birely v. Toronto, Hamilton and Buffalo Ey. Co. (Cout. Cas. 184) 886 Birkett, Grand Trunk Ey. Co. v. (xxxv. 296) 774, 986 Birks, Kirkpatrick v. (xxvii. 512) 74, 1151 INDEX TO NAMES OE CASES. 1341 PAGE. Bishop, Liscombe Falls Gold Mining Co. v. (xxxv. 539) . . .198, 480, 674' 1192 Bisnaw, Bresnau v. (Cout. Cas. 318) 47 1113 Black V. Hiebert (xxxviii. 557) 330, 688, 835 Black V. Huot (Cout. Cas. 106) '....' 479 Black, Imperial Book Co. v. (xxxv. 488) 248', 328 Black, National Ins. Co. v. (Cout. Cas. 30) , 45 Black, Stephen v. (Cout. Cas. 217) 201, 298, 1044 Blackburn, Green v. (xl. 647) 357, 679, 1187 Blackwoods, Ltd. v. Canadian Northern Eailway Co. (xliv. 92) 964 Blain, Can. Pac. By. Co. v. (xxxiv. 74) .' 970 Blain, Can. Pac. By. Co. v. (xxxvi. 159) 373, 598, 971 Blaine v. Jamieson (xli. 25) 76, 581 Blondin, Whiting v. (xxxiv. 453) 9, 271 Blue, Bed Mountain By. Co. v. (xxxix. 390), 600, 902, 989; (Cam. Prac. 444) .' 891 Board of Trade of City of Eegina, Canadian Pacific Eway. Co. et al. V. (xlv^321) 118, 911, 965, 1124 Boeckh v. Gowgauda Queen Mines (xlvi. 645) . . .■ Boehner, Hirtle v. (1. 264) . . .- Boulevard Heights v. Veilleux (lii. 185) 1139 Bonham v. Tie "Honoreva" (liv. 51) 204 Bonanza Creek Hydraulic Concession v. The Iving (xl. 281) 357, 404, 679 Bonanza Creek Gold Mining Co. v. The King (1. 534) . . . .216, 247 Booker, Brook v. (xli. 331) 145, 481, 1037 Booth V. Lowery (liv. 421) 727, 771 Booth V. The King (li. 20) 359 Borden, Confederation Life Ass. Co. v. (xxxiv. 338) . .70, 799, 867 Borden v. Boche; Halifax Election Case (Cout. Cas. 421) 427 Borland, Coote v. (xxxv. 282) .1056, lO&l, 1216 Boscowitz, Griffiths v. (Cam. Cas. 245) 807 Boudreau, Montreal St. By. Co. v. (xxxvi. 329).. 383, 636, 731, 816 Boulay v. The King (xliii. 61) 277, Boo Boulter, Davis & Co., Can. Cas. and Boiler Ins. Co. v. (xxxix. 558) 275, 551 Boulter v. Stocks (xlvii. 440) 313, 1054 Bow, McLachlan & Co. v. The "Camosun" (xl. 418) 38, 183, 591, 1075 Box, Williams v. (xliv. 1) 503 1115, IIU Boyd V. Attorney-General of British Columbia (liv. 532) ... . 115i Bradley v. Saunders (Cout. Cas.. 380) • • • • . ■ ■ • Branch Lines, Can. Pac. By. (xxxvi. 42) 273, 9o,, 1095 Brault, Deserres v. (xxxvii. 613) • 301, 394, 402 Bready, Grand Trunk By. Co. v. (xxxvi. 180) . . . . .4o4, 775, 987 Breckenridge-Lund Lumber & Coal Co., Travis v. (xlm 59! • Brenner v. Toronto By. Co. (xl. 540) 791, 805, 1198 Bresnau v. Bisnaw (Cout. Cas. 318) 47, 111^ Breton v. Gouthier dit Bernard (Cout. Cas. 650... Brickies, Snell v. (xlix. 360) . . . . ; . . • • ■ • JIS, 122^ Bridger, W. J. McGuire Co. v. (xlix. 632) 182, 7ob Bridgman v. Hepburn (xlii. 228) ■■■■■■••■■■■•:•• Brigham v. Union Bank of Canada (Cout. Cas. 3oo) s.c.D. — 43 1343 INDEX TO XAMES OF CASES. PAGE. British and Foreign Bible Soc. v. Tupper (xxxvii. 100).. 451, 1241 British American Oil Co., Grand Trunk Eailway Co. v. (xliii. 311) 964 British American Oil Co., Canadian Pacific Eailway Co. v. (xlvii. 155) • 966 British Columbia v. The King (xliii. 37) 354 British Columbia Electric Railway Co. v. Crompton (xliii. 1) 753, 1115 British Columbia Electric Eailway Co. v. Dynes (xlvii. 395) . . 793 British Columbia Electric Eailway Co. t. Vancouver, Victoria and Eastern Eailway and Navigation Co. et al. (xlviii. 98') 344, 967- British Columbia Electric Eailway Co., Daynes v. (xlix. 518) 455, 794, 908, 1301 British Columbia Electric Eailway Co. v. Wilkinson (xlv. 363) 193, 734, 994 British Columbia Electric Eailway Co. v. Turner et al. (xlix. 470) 640, 861, 1017, 1137 British Columbia Electric Eailway Co., Tait v. (liv. 76) 98 British Columbia Fisheries, In re (xlvii. 493) 354, 501 British Columbia Sugar Eefining Co. v. Granick (xliv. 105) 118, 1118 British Columbia Land and Investment Agency v. Ishitaka (xlv. 303) 303, 1041 Brock et al., City of Winnipeg v. (xlv. 371) 718, 1124 Brompton Pulp and Paper Co. v. Bureau (xlv. 393) 56, 1032 Brook V. Booker (xli. 331) 145, 481,' 1037 Brookfield v. Sievert (xxxv. 494) 373, 617, 655, 731 Brookman, Conwav v. (xxxvi. 185) 1177 Brooks, Scanlon, O'Brien Co. v. Fakkema (xliv. 413) 668, 745 Brosseau v. Dore (xxxv. 305) 1308, 1340 Brothers of Christian Schools, re (Cout. Cas. 1) 336, 633 Brown v. Coughlin, In re Stratford Fuel, Ice, Cartage and Con- struction Co. (1. 100) 938' Brown, Daly v.; re Daly (xxxix. 123) 104, 149, 417, 483, 1053, 1343 Brown, Gillies v. (liii. 557) 396, 1145 Brown v. Lamontagne (Cam. Cas. 30) 198 Brown, Town of New Glasgow v. (xxxix. 586) 706, 1044 Brownell v. Brownell (xlii. 368) 800, 893 Brownlee v. Mcintosh (xlviii. 588) . . .- 358, 931 Browning v. Masson Ltd. (lii. 379) 386 Brulott, Grand Trunk Pacific Eailway Co. v., (xlv. 639) Bruneau, Genereux v. (xlvii. 400), 56; (Cam. Prac. 394) 883 Brush, Macdonald v. (Cout. Cas. 141) 46, 873 Brussels, Village of, v. McCrae (Cout. Cas. 336) ; (Cam. Prac. 389). . -. 93, 114, 874 Bucyrus Co., Canada Foundry Co. v. (xlvii. 484) 1193 Bull, Imperial Fire Ins. Co. v. (Carn. Cas. 1) 563 Bulling, Halparin v. (1. 471) 657, 757 Bureau, Brompton Pulp and Paper Co. v. (xlv. 292) 56, 1032 Burgess v. Morton (Mast. S. C. Prac. 17) 112 Burke v. Eitchie (Cout. Cas. 365) 407, 683 Burnett v. Htitchins Car Eoofing Co. (liv. 610) 88' INDEX TO NAMES OF CASES. 1343 Burnham, Stratton v., ^\'est Peterborough Election Case (xli. ^'^''^' *10) 424 1114 Burns, Mathewson v. (1. 115) ' IQg^ Burrard Power Co. v. The E:ing (xliii. 27) 254 Burt V. City of Sydney (1. 6) '_ ^ ^ 38o Bustin V. Thorne (xxxvii. 532) gg gQg Butler V. Murphy & Co. (xli. 618) 174' 920 Bureau, Gale v. (xliv. 305).. 23, 95, 122, 386, 638', 847,1030^ 1119 Byron N. White Co., Sandon Waterworks Co. v. (xxxv. 309) 94, 230, 488, 545, 844, 913 Byron N. AVhite Co. v. Star Mining & Milling Co. (xli. 245, 3'^'^) 480, 679, 940, 1114 C. C. Beck Manufacturing Co. v. Ontario Lumber Co. (Cout. Cas. 422) ; (Cam. Prac. 286) , 114, 876 C. Beck Manufacturing Co. v. Valin and Ontario Lumber Co. (xl. 523) 1028, 1112, 1190 Cadwell, "The C. F. Bielman" v. (Cout. Cas. 405) 34, 82 Cairns v. Murray (xxxvii. 163) '. 4, 1099, 1209 Calgary, City of, Pearce v. (liv. 1) 58, 126 Calgary and Edmonton Ijand Co. v. The King (Cout. Cas. 271) 1169 Calgary and Edmonton Ey. Co. v. The King (Cout. Cas. 271) 295, 672, 1169 Calgary and Edmonton Ey. Co. v. Mackinnon (xliii. 379) .123, 977 Calgary and Edmonton Land Co. v. Attorney-General of Al- berta (xlv.. 170) 93, 136, 257, 1004, 1123 Calgary, City of, v. Harnovis et al. (xlviii. 494) 793, 1202 Calgary and Edmonton Eailway Co., Saskatchewan Land and Homestead Co. v. (li. 1) 492, 979 Calgary and Edmonton Eailway Co., City of Edmonton v. (liii. 406) 976 Calloway v. Stobart Sons & Co. (xxxv. 301) 219, 1049 Calori, Andrews v. (xxxviii. 588) 316, 1143, 1217 "Calvin Austin," The, v. Lovitt (xxxv. 616), 34, 651, 725, 727; (Cam. Prac. 68) 877 Cameron, Grant v. (Cam. Cas. 239) 638 Cameron, Eoyal Paper Mills Co. v. (xxxix. 365) . . . .666, 743, 902 "Camosun," The, Bow, McLachlan & Co. v. (xl. 418) 38, 183, 591, 1075 Campbell, Dickie v. (xxxiv. 265) 96, 382, 899, 1025, 1092 Campbell, Miller v. (Cout. Cas. 280) Campbell, Irwin v. (li. 358) : • ■ • • • • 613 Campbell v. Douglas (liv. 28) • • ■ -447, 692 Camjbellton, Town of, Crockett v. (xliv. 606) ... 291 709, 1122 Campbellford, Lake Ontario and Western Eailway Co. v. Laid- law (1. 422n) ^ "•■.;•■■ "n ■" 'nV ' '•■ Campbellford, Lake Ontario and Western Eailway Co. v. Massie n 409) Canada Atlantic' Ey. Co. et al., Ottawa Electric Ey.^ Co^^v. ^^^ (xxxvii. 354) ■ ' ' ....^ Canada Carriage Co. v. Lea (xxxvii. 672) 96, V95, 1101 1344 INDEX TO NAMES Of CASES. PAGE. Canada Foundry Co. v. Mitchell (xxxv. 453) 599, 754 Canada Provident Assn., re (Cout. Cas. 48) 213, 633, 1113 Canada Temperance Act (Cout. Cas. 304) Canada Woollen Mills Co. v. Traplin (xxxv, 434) 664, 743 Canada Wood Specialty Co. v. Moritz (xlii. 337) Canada Trust Co. v. Davis, In re Eispin (xM. 649) Canada Foundry Co. v. Bucyrus Co. (xlvii. 484) 1193 Canada Cement Co. v. Fitzgerald (liii. 363) 407, 431 Canada Foundry Co., Lyman v. (Cam. Prac. 388) 91 Canadian Asbestos Co. v. Girard (xxxvi. 13) 665, 674, 768 Canadian Autobus Co. et al., Eobertson v. (lii. 30) 38, 705 Canadian Bank of Commerce v. Barrett© (xli. 561) . .153, 852, 1313 Canadian Bank of Commerce, Cox v. (xlvi. 564) .... 150, 165, 853 Canadian Bank of Commerce, Pioneer Bank v. (liii. 570). 167, 520 Canadian Breweries Co. v. Gariepy (xxxviii. 336) 53, 830 Canadian Bridge Co., Creveling v. (li. 316) 749 Canadian, Casualty and Boiler Ins. Co. v. Boulter, Davies & Co. and Hawthorne (xxxix. 558) 375, 383,, 551 Canadian Electric Light Co., Tanguay v. (xl. 1) 17, 367, 1033, 1028, 1064 Canadian General Electric Co. v. Canadian 'Rubber Co. of Montreal (lii. 349) 285 Canadian Gas Power and I.i9,unches v. Orr Bros. (xlvi. 636).. Canadian Mutual Loan and Invt. Co. v. Lee (xxxiv. 224).. 48, 867 Canadian Northern Ey. Co. v. Eobinson (xxxvii. 541)... 588, 959 Canadian Northern Ey. Co., Carter v. (Cam. Prac. 366) .... 60 Canadian Northern Ey. Co. v. T. D'. Eobinson & Son (Cout, Cas. 394) , , 87, 959 Canadian Northern Eailway Co., In re (xlii. 443) 96] Canadian Northern Eailway Co. v. Eobinson (xliii. 387)... 33, 992 Canadian Northern Eailway Co., Blackwoods, Ltd. v. (xliv. 93) 964 Canadian Northern Eailway Co. v. Anderson (xlv. 355) . . .639, 663, 746, 995, 1135 Canadian Northern Eailway Co. v. Woolsey (Cam. Prac. 303) . 103 Canadian Northern Eailway Co., Beck v. (xMi. 397) 784 Canadian Northern Ey. Co. v. City of Winnipeg (liv. 589) 137 Canadian Northern Ey. Co. v. Pszenicnzy (liv. 36) 1001 Canadian Northern Quebec Eailway Co. v^ Naud (xlviii. 343) . ^ 120, 365 Canadian Northern Ontario Eailway Co. v. Holditch (1. 365) . . 978 Canadian Northern Ontario Eailway Co. v. Smith (1. 476). 110, 863 Canadian Northern Quebec Eailway Co. v. Gignae (li. 136) .66, 336 Canadian Northern Eailway Co. v. Diplock (liii. 376)... 7, 86, 1000 Canadian Northern Western Eailway Co. v. Moore (liii. 519) 123, 979 Canadian Niagara Power Co. v. Township of Stamford (1. 168) 131 Canadian Oil Companies, Canadian Pacific Eailway Co. et al. V. (xlvii. 155) 966 Canadian Pacific Ey. Co., Andreas v. (xxxvii. 1) 776, 988 1226 Canadian Pacific Ey. Co., Muiiicipalffy of Argyle v. (xxxi. 550) 238, 1095 Canadian Pacific Ey Co., Bate v. (Cam. Cas. 10) 972 Canadian Pacific Ey. Co. v. Blain (xxxiv. 74) 970 Canadian Pacific Ey. Co. v. Blain (Vxxvi. 159) 373, 57K, 971 INDSX to names of cases. 1345 Canadian Pacific By. Co., re Branch Lines (xxxvi. 42) . . .273, 957, 1095 Canadian Pacific Ry. Co. V. Carruthers (xxxix. 251) ..778, 989, 1107 Canadian Pacific Ey. Co. v. Contnee & McLennan (Cout. Cas. 66) . . . . 104, 895 Canadian Pacific Ey. Co. V. Eggleston (xxxvi. 641) 776, 987 Canadian Pacific Ey. Co., Grand Trunk Ey. Co. v. (xxxix. 220) 324, 10S3, 1186 Canadian Pacific Ey. Co. v. Hansen (xl. 194) 683, 902 Canadian Pacific Ey. Co. v. James Bay Ey. Co. (xxxvi. 42) . . . Canadian Pacifib Ey. Co. v. The King (Pheasant Hills Branch) (xxxviii. 137) 70, 869, 1003, 1102 Canadian Pacific Ey. Co. v. The King (xxxviii. 811) .^... .189, 974 Canadian Pacific Ey. Co. v. The King (xxxix. 476) . . ! . . .257, 1006, 1108 Canadian Pacific Ey. Co. and City of London v. Grand Trunk Ey. Co. (Cout. Cas. 396) Ca,nadian Pabific By. Co., North Cypress Mcpty. v. (xxxv. 550) , , , , , 238, 1095 Canadian Pacific Ey. Co. v. City of Ottawa (Mast. S. C. Prac. 176) Canadian Pacific Ey. Co. v. Ottawa Eire Ins. Co. (Mast. S. C. Prac. 183) Canadian Pacifiis Ey. Co. v. Ottatva Eire Ins. Co. (xxxix. 405) 248, 309, 561 Canadian Pacific Ey. Co., Springdale School District v. (xxxv. 550) 9, 133, 238, 314, 1095 Canadian Pacific Ey. Co., Alexa;nder Brown Milling and Eleva- tor Co. v. (xlii. 600) 611 Canadian Pacific By. Co. v. Lachance (xlii. 205) 384 Canadian Pacific Ey. Co. v. City of Toronto (xlii. 613) 962 Canadian Pacific Ey. Co., Grand Trunk Pacific Ey. Co. and, v. City of EoTt William (xliii. 412) •• 964 Canadian Pacifi'c Ey. Co. v. Eegina Board of Trade (xliv. 328) y \}j «? J. J. Canadian Pacific Ey. Co. ^t al. v. Board of Trade of City of Be- gina (xlv. 321) 118> 911' 9^5, 1124 Canadian Pacific By. Co. v. Lloyd-Brown (Cam. Prac. 123) . 70 Canadian Pacific By. Co. v. City of Ottawa (Cam. Prac. 518) . 103 Canadian Pacific By. Co. v. Wood (Cam. Prac. 113) . . ... .... yui" Canadian Pacific By. Co. et al. v. British American Oil Co. ^^^ CanadSn'picific By". Co.' v.' Canadian Oil Go's (xlvii. 155) ... 966 Canadian Pacific By. Co., Stone v. (xlvn. 634) "^^ Canadian Pacifi'c By. Co. v. Wood (xlvii. 403 "^a Canadian Pacific By. Co. v. Carr (xlviii. 514) . . ... . .^. • .... Canadian Pacific By. Co., Chambers .< aL v. (xlviii. 162) . 96, 'Canadian Pacific Ev. Co. v. Hinrich (xlvm. 557) .... .784 yy, Canadian Pacific By. Co. v. City of Ottawa et al (xlvm. 2^57J^ ^^^ Canadian Pacific By. Co. v. Grand Trunk By. Co. (xlix. 52^5^) Canadian Pacific By. Co. v. Kerr ei al (xlix. 33) 25, 85, 379; , Canadian Pacific By. Co. v. McDonald (xlix. 163) ... 310, 975 860 1136 1346 IXDEX TO XAMES OP CASES. PACE. Canadian Pacific By. Co., Greer v. (li. 338) 999 Canadian Pacific Ey. Co. v. Parent and Chalifour (li. 234) .270, 999 Canadian Pacific Ey. Co., Continental Oil Co. v. (lii. 605) 437, 925 Canadian Pacific Ey. Co. v. Jackson (lii. 281) 381 Canadian Pacific Ey. Co., Street v. (Cam. Prac. 201) 101 Canadian Pacific Ey. Co. v. White (xliii. 627) -771, 951 Canadian Pacific Lumber Co. v. Paterson Timber Co. (xlvii. 398) Canadian Eailway Accident Ins. Co., Wadsworth v. (xlix. 115) 282, 552 Canadian Eubber Co. of Montreal, Canadian General Electric Co. V. (lii. 349) 285 Canadian Eailway Accident Ins. Co. v. Haines (xliv. 386) .280, 552 Canadian Eubter Co. v. Karavokiris (xliv. 303) 662, 759 Cannon v. Howland (Cam. Cas. 119) 197 Cantin v. Berub6 (xxxvii. 627) 11, 610, 1186 "Cape Breton," The, v. Eichelieu and Ontario Xav. Co. (xxxvi. 564) . ; 35, 725, 728, SeS, 940 Carbonneau, Letourneau v. (xxxv. 110) 303, 673 Carbonneau, Letourneau v. (xxxv. 701) 583, 895 Cardin, Paradis v. (Eichelieu Election Case) (xlviii. 625) . . . 428 Carey, Eoots et al. v. (xlix. 211) 1086, 1222 Carleton, County of, v. City of Ottawa (xli. 552) 723, 960 Garleton Woollen Co. v. Town of Woodstock (xxxviii. 411) . 134, 696, 1104 Carlson v. The King (xlix. 180) 472, 502 Carney v. O'MuUin; Halifax Elec. Cases (Cout. Cas. 421) .427, 583 Carpenter & Son v. Pearson (xxxv. 380) ; . 178, 927 Carr, Canadian Pacific Ey. Co. v. (xlviii. 514) Carrier v. Sirois (xxxvi. 221) 51, 1018, 1233 Carruthers, Can. Pac. Ey. Co. v. (xxxix. 251) 778, 989, 1L07 Carruthers & Co. v. Schmidt (liv. 131) 174 Carstairs, Cross v., Edmonton Provincial Election (xlvii. 559) 78, 423 Carstens v. Muggah (xxxvi. 612) 443, 801 Carter v. Canadian Northern Ey. Co. (Cam. Prac. 266) 60 Cartwright et al. v. City of Toronto (1. 215) 136 Casey, Travers v. (xxxiv. 419) 1239 Cass V. Couture and McCutcheon (Cout. Cas. 3&6) 70, 886 Cassidy, Billings v. (Cam. Prac. xi.) 80 Castleman v. Waghorn, Gwynn & Co. (xli. 88) 22, 224, 1036 Catellier, Syndics de St. Vallier (Cout. Cas. 202) ... .72, 579, 649 Gates, Bailey v. (xxxv. 293) 741, 1072, 1228 Cauchon, Lachance v. (lii. 223) 86 Cavanagh, Glendinning v. (xl. 414) 173 Central Bank of Canada, Hogaboom v. (Cout. Cas. 119) . .46, 1249 Central Vermont Ey. Co. v. Franchere (xxxv. 68) 372, 907 "C. F. Bielman," The, v. Cadwell (Cout. Cas. 405) 34, 82 Chalifour, Parent and, Canadian Pacific Ey. Co. v. (li. 234) . 270, 999 Chamberlain v. The King (xlii. 350) 352, 950 Chamberlain Metal Weather Strip Co. v. Peace (xxxvi. 530) . . 831 Chambers et al. v. Canadian Pacifi'c Ey. Co. (xlviii. 162) .... 967 INDEX TO 2vTAMES OF CASES. 1347 PAGE. Chambly Manufacturing Co. v. Willett (xxxiv. 502) . .3?i, ,372, Champion v. World Building Co. (1 38") "^^^' ^^^' ^'^^' ^?oq Chandler & Massey v. Kny-Scheerer Co. (xxxvi.' 30) 315 Chandler et al.. Boss v. (xlv. 127) VoV III Chappell Bros. & Co., City of Sydney v. (xliii! VrsV.V.V ' ' 708 Charlebois, Langelier v. (xxxiv. 1) sos 561 Vio' 118? Charrest v. Manitoba Cold Storage Co (xlii 253) ' ' ' °'' Chateauguay and Northern Ey. Co. v. Montreal' Park and Island Ey. Co. (xxxv. 48) 300, 544, 702, 984, 1194 Chateauguay et Beauharnois, Cie. de Nav., La Cie. Pontbriand V. (xlvi. 603) Chicoutimi Pulp Co. v. Price (xxxix. 81) 14,' 64' '330' 871 Chicoutimi, Town of, Guardian Assur. Co. v. (li. 562) ' ' 556 Chicoutimi Pulp Co., Price v. (li. 179) 209' 628 China Mutual Ins. Co., Pickles v. (xlvii. 489) '.'....' 571 China Mutual Ins. Co., Smith v. (xlvii. 439) .' 571 '■'Chinook," Ships "A. L. Smith" and, v. Ontario Gravel 'and Freighting Co. (li. 39) 40 Chisholm v. Chisholm (xl. 115) . ■. 822 946 Choquette, Pagnuelo v. (xxxiv. 102).. 8, 312, 508, 1053, 1216' 1333 Chouillou, Dougall v. (Cout. Cas. 395) Christian Schools, Brothers of (Cout. Cas. 1) 236, 622 Cie. Electrique Dorchester v. Eoy (xlix. 344) .' 1033 Citizens Light and Power Co. v. Town of St. Louis (xxxiv. 495) , 83, 437, 448, 578 Clair, Temiscouata Ey. Co. v. (xxxviii. 330) 13, 115, 855, &-70, 1102, 1203 Clark V. Docksteader (xxxvi. 633) 675, 1097 Clark v. City of Vancouver (xxxv. 121) 1184, 1208 Clark, Union Bank of Canada v. (xliii. 299) 483, 1156 Clarke v. Goodall (xliv. 284) 76, 897 Clarke v. Baillie (xlv. 50) 176, 853 Clarke, Eoyal Guardians v. (xlix. 329) 383, 567 Clement, Hull Electric Co. v. (xli. 419) 66, 378 Clergue v. Vivian & Co. (xli. 607) 366, 1058 Clergue, Vivian & Co. v. (li. 537) 1046, 1334 Cliche V. Eoy (xxxix. 344) 403, 1064 Clinton Wire Cloth Co., Dominion Fence Co. v. (xxxix. 535) . 833 Clover Bar Coal Co. v. Humberstone et al. (xlv. 346) 965, 1135 Clover Bar Coal Co., Denman v. (xlviii. 318) 78, 318 Club de Chasse et de Peche Ste. Anne v. Eiviere-Ouelle Pulp and Lumber Co. (xlv. 1) 517, 1031 Cockburn, Holsten v. (xxxv. 187), 43, 868; (Cam. Prac. 449) . 878 Coffin v. Gillies (li. 539) 319 Coghlin V. Fonderie de Joliette (xxxiv. 153) 63, 371 Cohen Bros., Kirstein Sons & Co. v. (xxxix. 286) 510, 1192 Cole, Bead v. (Hi. 176) 1080 Colwell et al. v. Neufeld (xlviii. 506) Como V. Herron (xlix. 1) 177, 305 Companies, In re (xlviii. 331) 215, 246 Connolly v. Grenier; v. Martel (xlii. 242) Conrod v. The King (xlix 577) 27, 1017 Confederation Life Assn. v. Borden (xxxiv. 338) 70, 799, 867 1348 INDEX TO NAMES OF CASES. PAGE. Confederation Life Assn. of CarQada v. O'Donnell (Cam. Cas. 154) 449 Conmee v. Securities Hoiding Co. (xxxviii. 601) 176, 853 Conmee & McLennan v. Can. Pac. Ey. Co. (Gout. Cas. 66). 104, 895 Connell v. Connell (xxxvii. 404) 459, 1341 Connell v. Connell (Mast. S. C. Prac. 51) ' 114 Connell v. Connell (Cam. Prac. 289) : 93, 114 Connolly v, Armstrong (xxxv. 12) 78, 579 Connolly V. City of St. John (xxxv. 186) 272 Consumers' Electric Co. v. Ottawa Electric Co. (Cout. Cas. 311) Continental Trusts Co., Mineral Produpts Co. v. (xxxvii. 517), 67S, 687; (Cam. Prac. 490) 894, 1012, 1069 Conway v. Brookman (xxxv. 185) 1177 Continental Oil Co. v. Canadian Pacific Ey. Co. (lii. 605) . 437, 925 Cooper, Bark-Pong et al. v. (xlix. 14) 318, IOS'6, 1221 Coote V. Borland (xxxv. 282) 1056, 1081, 1216 Copeland-Chatterson Co., Hatton v. (x:xxvii. 651) 273, 833 Copeland-Chatterson Co. v. Paquette (xxxvii. 451) . . ; 832 Corbett, McNeil v. (xxxix. 608) 678, 1144, 1184 Corbett, "West. v. (xlvii. 596) 639, 982 Corbin v. Thompson (xxxix. 575) 264, 330, 376 Cornwall Township "^f, v. Ottawa and New Yotk Eailway Co. et al. (lii. "466) 135 Cote V. Jas. Eichardson Co. (xxxviii. 41) 5.3, 329, 574, 869, 882 Cottingham v. Longman (xlviii. 543) 84 Cotton, The King ex rel. Attorney-General of Quebec v. (xlv. 469) 350, 1128, 1153 Coughlin, Brown v.. In re Stratford Fuel, Ice, Cartage and Construction Co. (1. 100) 938 Coulter ,v. Thompson (xxxiv. 361) 450, 483 Coulthard, Sinclair v. (Cam. Prac. 30) 80 Couture, Cass v. (Cout. Cas, 386) 70, 886 Couture v. Couture (xxxiv. 716) 9, 855, 1063, 1177 Coventry, Annable v. (xlvi. 573) 84, 1183, 1190 Cowan, Turner v. (xxxiv. 160) 221, 834 Cowan, Turner v. (Cout. Cas. 306) 896 Cox V. Adams (xxxv. 393) 159, -300, 653, 822 Cox V. Canadian Bank of Commerce (xlvi. 564) . . . .150, 165, 853 Coy v. Pommerenke (xliv. 543), 6, 69, 827, 915; (Cam. Prac. 59^) ^ 914 Craigellachie Glenlivet Distillery Co., Bigelow v. (xxxvii. 55) 296, 1037 Craig, Lamoureux v. (xlix. 305) 1246 Creese v. Fleischman (xxxiv. 279) ^ 69 866 Creighton, DufEus v. (Cam. Cas. 78) 145 Creveling v. Canadian Bridge Co. (li. 216) 749 Criminal Code, In re (xliii. 434) 344 Crockett v. Town of Campbellton (xliy. 606) 391. 709, 1133 Crompton, British Columbia Electric Eailway Co. v. (xliii. 1) 753, 1115 Cross V. Carstairs, Edmonton Provincial Election (xlvii. 559) . 78, 433 INDEX TO NAMES OF CASES. 1349 "AGE Crown Grain Co. v. Day (xxxix. 258) 113, 181, 630, 1108 Crown Life Ins. Co. v. Skinner (xliv. 616) tg, 897 Crows' Nest Pass Coal Co., Elk Lumber Co. v. (xxxix. 169)' „ ■ 921, 1083, 1218 Crowsnest Southern Eailway Co., Laidlaw v. (xlii. 355) . . .783, ' 892 992 CuUen, McNeil v. (xxxv. 510) '. 83, 452^ 1240 Cumberland Election Case (xxxvi. 543) '.425^ 448 Cumberland Ey. and Coal Co., St. 'John Pilot Commissioners V. (xxxviii. 167) 840, 1072 Cummings, City of Vancouver v. (xlvi. 457) 470, 718, 763 Cunard t. The King (xliii. 88 368^ 491 Curley, re (Cout. Cas. 71) " 206^ 521 Curry v. The King (xlviii. 532) 346 Cushing, Cus-hing Fibre Sulphite Co. v. (xxxvii. 427) 52, 1249 Cushing Sulphite Fibre Co., re (xxxvi. 494) . ...106, 868, 1097, 1248 Cushing Sulphite Fibre Co., 're (xxxvii. 173) 52, 579, 1249 Cushing Sulphite Fibre Co., re (Mast. S. C. Prac. 107) Cushing Sulphite Fibre Co. v. Cushing (xxxvii. 427) 52, 1249 Cushing V. Knight (xlvi. 555) 231, 1085, 1220 D. Daly, re; Daly v. Brown (xxxix. 122) 104, 149, 417. 483, 1053, 1343 Dana et al., Vancouver Breweries v. (lii. 134) 615 Danks v. Park (Cam. Cas-. 300) 836 Dartmouth Perry Commission v. Marks (xxxiv. 366).... 537, 658 Dartmouth, Town of, v. Co. of Halifax (xxxvii. 514) .... 140, 1062 Daveley, Lamothe v. (xli. 80) 22, 54 David V. Swift (xliv.) 179) 33, 122 279 Davidson, Man. and N. W. Land Corpn. v. (xxxiv. 255) .... 926 Davidson v. Stuart (xxxiv. 215) 750 Davidson, Winteler v. (xxxiv. 274) 49 Davie, Montreal Water & Power Co. v. (xxxv. 355) . . .51, 383, 816 Davies v. McMillan (Cam. Cas. 306) 1042' Davis, Macfarlane v. (xlvii. 399) 1054 Davis, Canada Trust Co. v. In re Eispin (xlvi. 649) Davy, Niagara, St. Catharines & Toronto Eailway Co. v. (xliii. 377) 963 Day V. Crown Grain Co. (xxxix. 358) 113, 181, 630, 1108 Day, Dominion Iron & Steel Co. v. (xxxiv. 387) 467, 773 Day V. Hayes (xli. 134) 29? Daynes v. British Columbia Electric Eailway Co. (xlix. 518). 455, 794, 908, 1201 "D C Whitney," The, v. St. Clair Navigation Co. (xxxviii. ■ 303) . . . 37, 590, 1072 Dean, In re (xlviii. 235) 346, 522 DeGalindez v. The King (xxxix. 682) 17, 354, 1004 DeGalindez v. Owens (Cout. Cas. 393) 82, 870 Deguire, Meloche v. (xxxiv. 34) ... .8, 195, 340, 643, 843. 954, ^ ' 1089, 1151, 1165 DeKerangat v. Eastern Townships Bank (xli. 259) 183, 7.32 Delisle V. Arcand (xxxvi. 23) 9, ol 1350 TXDBX TO XAMES OF CASES. Delisle v. Arcand (xxxvii. 668) 13. 189, 1178 Delta V. Vancouver Ey. Co. (Cam. Prac. 90) 63 Delta Corporation v. Wilson (Cout. Cas. 334, Cam. Prac. 121) 95, 99, 795 Demers, Bank of Montreal v. (Cout. Cas. 196) 582, 896 Denman v. Clover Bar Coal Co. (xlviii. 318) 78, 218 Denis, Drolet v. (xlviii. 510) Department of Agriculture of the Province of Ontario, Grand Trunk Eailway Co. v. (xlii. 567) 115, 961 Depencier, Grand Trunk Ey. Co. v. (Cout. Cas. 343) 903 Desaulniers v. Payette (xxxv. 1) 73, 328 Desaulniers, Johnston v. (xlvi. 620) Deschenes Electric Co. v. Boyal Trust Co. (xxxix. 567).. 275, 403 D'eschenes, Donaldson et al. v. (xlix. 136) 431, 760 Deserres v. Brault (xxxvii. 613) 301, 394, 402 Desforges, Dlifresne v. (xlvii. 382), 25, 108, 860, 945; (Cam. Prac. xiv.) ^ 876 Deslongchamps, Montreal St. Ey. Co. v. (xxxvii. 685) Desmarteau, St. Aubin v. (xliv. 470) 5, 56 Desormeaux v. Village of St. Ther^se de Blain villa (xliii. 82) . 112 Desrosiers, The King v. (xli. 71) 22, 660, 736, 940 Dick V. Gordaneer (Cout. Cas. 326) • 106, 874 Dickie v. Campbell (xxxiv. 365) 96, 382, 899, 1026, 1092 Dickie, Union Bank of Halifax v. (xli. 13) 75, 580, 581 Dickson v. Kearney (Cam. Cas. 53) 526 Dickson, Pitt v. (xlii. 478) 400, 1054 Dillon, Mutual Eeserve Fund Life Assn. v. (xxxiv. 141).. 96, 795, 907 Dillon, Mutual Eeserve Fund life Assn. v. (Cout. Cas. 339) Dillon, Mutual Eeserve v. (Cam. Prac. 120) 98' Diplock, Canadian Northern Eailway Co. v. (liii. 376)... 786, 1000 Disher, D'onkin v. (xlix. 60) 656, 838, 1135 Dixon V. Eichelieu & Ontario Navigation Co. (Cam Cas. 66) 193 Dixville Butter and Cheese Assn., Hetu v. (xl. 128) . .17, 461, 647 Doberer v. Megaw (xxxiv. 135) 119, 458, 589, 1091 Docksteader, Clark v. (xxxvi. 633) 675, 1097 Dodge V. The King (xxxviii. 149) 375, 444, 485 Dods V. McDonald (xxxvi. 331) 443, 636, 1161, 1171 Dome Oil Co. v. Alberta Drilling Co. (lii. 561) 310 Dominion Bank, Ewing v. (xxxv. 133) 149, 435 Dominion Bank v. Union Bank of Can. (xl. 366).. 19, 151, 163, 764 Dominion Bridge Co., Ottawa Northern and Western Ey. Co. V. (yxxvi. 347) 339, 263, 387, 845 Dominion Bridge Co. v. Jodoin (xlvi. 634) Dominion Coal Co., Drysdale v. (xxxiv,. 338) 73, 648, 1019 Dominion Fish Co. v. Isbester (xliii. 657) 105, 903 Dominion Elevator Co., Midland Navigation Co. v. (xxxiv. 578) 368, 1071 Dominion Fence Co. v. Clinton Woven Wire Co. (xxxix. 535) . 833 Dominion Fire Ins. Co., Kline Brothers & Co. v. (xlvii. 253) 556, 934 Dominion Fire Ins. Co. v. Nakata (lii. 394) 641, 560 Dominion Iron and Steel Co. v. Day (xxxiv. 387) 467, 773 Dominion Iron and Steel Co. v. McDonald (xxxv. 98) 133, 695 INDEX TO XAMES OF CASES. 1351 PAGE. Dominion Iron and Steel Co. v. McLennan (xxxiv. 394) . . .170, 486 Diominion Iron and Steel Co. V. Oliver (xxxv. 517)... 665, 774, 987 Dominion Linen Mfg. Co. v. Langley (xlvi. 633) Dominion Permanent Loan Co., Morgan v. (1. 485) 512 Dominion Textile Co. v. Angers (xli. 185) 224, 275 Dominion of Canada, Province of Ontario v. (xlii. 1) 241, 543 Donaldson et al. v. Deschenes (xlix. 136) 431, 760 Donkin v. Disher (xlix. 60) 656, 828, 1135 Donovan, Eoberts v. (Mast. S. C. Prac. 37; Cam. Prac. 189) . 113 Donovan v. Excelsion Life Ins. Co. (liii. 539) 565 Doran v. Jewell (xlix. 88) 116, 1135 Doran v. McKinnon (liii. 609) 286, 1145 Dorchester Cie, Electrique v. Eoy (xlix. 344) 1033 Dore, Brosseau v. (xxxv. 205) 1208, 1240 D'oucet, Shawinigan Carbide Co. v. (xlii. 281) 744 Dougall V. Chouillou (Cout. Cas. 395) Douglas, Eraser v. (xl. 384) 654, 1007, 1110 Douglas, Campbell v. (liv. 28) 447, 692 D^owker, Schlomann v. (Cam. Prac. 89) 88 Drake, Jackson & Helmcken, Jackson v. (xxxvii. 315) 4, 448 Drake, Jackson & Helmcken, Jackson v. (Cout. Cas. 384) .582, 896 Drolet v. Denis (xlviii. 510) Drysdale v. Dom. Coal Co. (xxxiv. 338) 73, 648, 1019 Dube, Algoma Steel Corporation v. (liii. 4&1) 758 Dube V. Lake Superior Paper Co. (liii. 481) 758 Duchesnay, Cap Eouge Pier, Wharf & Dock Co. v. (xliv. 130) , ' 469, 919, 1179 Duckett & Co., Joseph A. Likely Co. v. (liii. 471) 1076 Duff V. Lane (xlviii. 508) DufEy, Langley v. (Cam. Prac. 144) 45 DufEus V. Creighton (Cam. Cas. 78) .' ■ 145 Duf our, Paquet v. (xxxix. 332) 498, 748- Dufresne v. Pee (xxxv. 8) , 50, 1021 Dufresne v. Eee (xxxv. 274) 370 Duggan, Angers v. (Cout. Cas. 425), 62, 876; (Cam. Prac. 89) 877 Duguay, North Shore Power Co. v. (xxxvii. 624) Dumont v. Eraser (xlviii. 137) 1034, 1236 Dumphy v. Martineau (10th June, 1908), Cam. Prac. 543) . . 876 Dumphy v. Martineau (xlii. 334; Cam. Prac. 543) 103, 913 Duncan, Plisson v. (xxxvi. 647) 608, 1008 Duncan, Eogers v. (Cam. Cas. 353) 420 Dunn V. Eaton (xlvii. 205) • -25, J6 Dunsmuir v. Lowenberg, Harris & Co. (xxxiv. 228) 598, 804 Dunsmuir v. Lowenberg, Harris & Co. (Cout. Cas. 270).. .582, 896 Dussault, Mayrand v. (xxxviii. 460) .84, 460 509 870, 1342 Dynes, British Columbia Electric Eailway Co. v. (xlvu. 395) . 79 <; E. Ead V. The King (xl. 272) ...... . . . . . 68, 343 East Hawkesbury, Township of, v. Township of Lochiei (xxxiv. C-.OX 464, 535, llo8 Eastern Townships Bank; deKerangat v .(^li- f 9 )■;•••■ If' If Eastern, Townships Bank v. Vaughan (xli. 386) . . . .o7o, 1039, 1113 135S INDEX TO NAMES OF GASES. ' PAGE. Eaton, Dunn v. (xMi. 203) 25, 76 Eberts v. The ting (xlvii. 1) 345, 797 Economic Sea-lty Co., Montat-Ville Land Co. v. (liv. 140) ...... 59 Eden, Hood v. (xXxti. 476) .84, 227, 868. 1248 Edmonton, City of, York v. (xlii. 3'63) 134, 697 Edmonton ProtibciAl Election, Cross v. Carstairs (xlvii. 559) ' 78, 423 Edmonton, City of, Eowland v. (1. 520) 532, 1015 Edmonton, City of, t. CalgaJy attd Edmonton EailWav Co. (liii. 406) 976 Edmonton, City of, Jamieson v. (liv. 443) 533, 720 Eggl'eston, Can. Pac. Ey. Co. v. (xxxvi. Ul) 776. 98^ illeetrical Development Co. of Ofltarib v. Township of Stam^ ford (1. 16S) 131 Eileetric Fireproofing Co. of Qahada v. Electric Fireproofing Co. (xliii. 182) v 277, 1234 Elgin, Co. of, V. Eobert (xxxvi. 27) 115, 678, 868 Elk Lumber Co. v. Crow's Nest Pass Coal 'Co. (xxxix. l69) 921, 1083. 1218 Elliott, Baird v. (Cout. Cas. 84) 1023, 1029 Bmmerson, Maddison v. (xxxiv. 533) ....... .355, 854, 1092, 1176 Emperor of Eijssia v. Proskouriakoff (xlii. 226) Equity Fire Ins. Co. v. Thompson (xli. 491) ; 559, 1115 Esquimalt and Nanaiitife Eail*ay Od-.^ MePhee V. (xlix. 43) , ■ 806, 904 Essex Terminal Ey. Co. v. Windsor, Essex and Lake Shore Ea|)id Ey. Co. (xl. 620) 589, 960 Essex, County of, Eod-d v. (xliv. 137) 369, 649, 708 Estey, People's Bank of Halifax v. (xxxiv. 429) 434, 1052 Bthier, Fauteux v.^ Two M-ountains Election (xlvii. 185) . .426, 471, 1132 "Euphemia," The SS., The SS. "Tordenskjold" v. (xli. 164), 39, 95 ; (Cam. Prac. xv.) ) 876 Evangeline Fruit Co. v. Provincial Fire Ins. Co. of Canada (li. , 474) 557 Evans v. Evans (1. 262) Evans v. BVans (Cam. Prac. 446) 891 Everett, Troop v. (Cout. Ca§. ISl) 183, 939, 1059, 1076 Everson, Toronto Suburban EailW&y Co. v. (liv. 395) 494, 950 Ewing V. Dominion Bank (xxxv. 133) ; . . . 149, 436 Excelsior Life Ins. Co.-, Donovan v. (liii. 539) 665 F. Factories Ins. Co., Laforest V. (liii. 296) 658 Fakkema, Brooks, Seanlon, O'Brien Co. v. (xliv. 412) . . . .668, 745 Fairchild, Eistin v. (xxxix. 274) 274, 631 Farquhar, Spindler v. (Cout. Cas. 364) Farquhar v. Zwicker (xli. 30) 304, 815 Farrell v. Manchester (xl. 339) 18, 217 Faulkner v. Greer (xl. 399) 19, 377, 1204 Faulkner v. City of Ottawa (xli. 190) 384, 721 Fauteux V. Ethier, Two Mountains Election (xlvii. 185) . .426, 471, 1132 IXDEX TO NAMES OF CASES. 13c3 PAGE. Eauvreau v. Eochon (xlvi. 6J:7) Fee, Dtifresne v. (xxxv, 8) 50 1031 Pee, Dufr-esne v. (xxxv. 374) 370 Ferguson, Sandberg v. (xxxv. 476) 674 Ferries, re International and Interprovincial (xxxvi. 206) .239, 498, 622, 821, 1010 Ferron, Laramee v. (xli. 391) 462, 1243 Fidelity-Phenix Fire Ins. Co., Guimond v. (xlvii. 216) 556, 1284 Finseth v. Eyley Hotel Co. (xliii. 646) 108 Finseth v. Eyley Hotel Co. (xliv. 321) 591, 641, 1119 Fisher, Jukes v. (xlvii. 404) 690 Fisk, Stevens v. (Cam. Cas. 392) 416 Fitzgerald, Loveless v. (xlii. 254) 618 Fitzgerald, Canada Cement Co. v. (liii. 263) 407, 421 Fleisehman, Creese v. (xxxiv. 279) 69, 866 Fleitmann v. The King; In re Heinze (lii. 15) 131 Fleming, Hutchison v. (xl. 134) 172, 928 Fleming v. McLeod (xxxix. 290), 161; (Cam. Prac. 69) 877 Fleming, Toronto Eailway Co. v. (xlvii. 612) 792, 1200 Fleutot, Giegerieh v. (xxxv. 327) 196, 1167 Fonderie de Joliette, Coghlin v. (xxxiv. 153) 62, 371 Fontaine v. Payette (xxxvi. 613) 70, 820, 1019 Forrest, Traves v. (xlii. 514) 6S0 Forst & Co., Warren, Gzowski & Co. v. (xlvi. 642) Forst, Warren v. (Cam. Prac. 127) 98 Forsythe v. Bank of Nova Scotia (Cam. Cas. 209) Fort George Lumber and Navigation Co., In re (xlviii. 593) . Fort William, Citv of, Grand Trunk Pacific Eailway Co. and Canadian Pacific Eailway Co. v. (xliii. 412) 964 Fortin, Laurentide Mica Co. v. (xxxix. 680) til, 44.5, 1158 Fortin, Quebec Ey., Light and Power Co. v. (xl. 181) . . . .461, 752 Foss Lumber Co. v. The King (xlvii. 130) 370, 1159 Foster, Anderson v. (xlii. 251) Fournier v. Leger (Cout. Cas. 100) 114, 872 Fowler, Martin v. (xlvi. 119) .^ • 1130 Fralick v. Grand Trunk Eailway Co. (xliii. 494) 994 Francis Kerr Co. v. Seely (xliv. 629) . . .' 1030 Franchere, Central Vermont Ey. Co. v. (xxxv. 68) 372, 907 Eraser, re; Eraser v. Abbott, re (Cout. f!as. 6) , . . 62. 872 Eraser, Algoroa Central and Hudson Bay Ey. Co. v. (Cout. Cas. 323) • 103, 886 Eraser Attorney- General of Quebec v. (xxxvii. 577) 443, 1027 Eraser v. Douglas (xl. 384) • • 654 1007, 1-110 Eraser v. McGuire (xl. 577) 30, 181, 3/8, 732 Eraser v. Stephenson (Cam. Cas. 214) • • • • • • ■ • «^ Eraser, Valiquette v. (xxxix. 1) • ■ 668, 73., 1^^8 Eraser v. Imperial Bank of Canada (xlvu. 313) .141, is.5 Eraser, Dumont v. (xlviii. 137) 102^, 1;-J6 Fraserville, Town of, Pouliot v. (liv. 310) .•.•••■ ^- ■••■ • 489, - 13 Fredericks, North West Thresher Co. v. (xliv. 318) ... .1013, _^^^^ Frith V. Alliance Investment Co. (xlix. 384) . . . -^^^^^S.^egs! ^^^^ Frontenac Gas Co. v. The King (li. 594) 359, 486 1354 INDEX TO NAMES OP CASES. PAGE. Frooks V. The King (xxxix. 258) 678 Fulton V. Norton (xxxix. 202) 15, 253, 799, 901, 1106 Fultz, McNeil v. (xxxviii. 198) 223, 263, 928, 1211 Furness, Withy & Co., Great Northern Ey. Co. v. (xl. 455) .44, 1111 Furness, Withy & Co., Great Northern Ey. Co. v. (xlii. 234) . - '^ iPurness, Withy & Co., Vipond v. (liv. 521) 190 Furry, McMeakin v. (xxxix. 378) 326, 677, 1144 G. Gabourie, re (12 Out. P. E. 253) • Gadomy, Bazinet v. (Mast. S. C. Prae. 102) Gagnon v. Belanger (liii. 204) 691, 1174 Gale V. Bureau (xliv. 305) 23, 95, 122, 386, 638, 847, 1030, 1119 Gallagher, Eenton v. (xlvii. 393) 648 Gannon, Boss v. (xxxix. 675), 158, 454; (Cam. Prae. 296) .882, 1079 Gariepy, Canadian Breweries Co. v. (xxxviii. 236) .'■ 53, 820 Garland Sons & Co. v. O'Eeilly (xliv. 197) 303, 417 Gauld, Wood v. (liii. 51) 830 Gault Bros. v. .Winter (xlix. -^41) 168, 1014 Gauvreau, Plourde v. Temiscouata Election (xlvii. 211) ... .73, 423, 1132 Gaynor and Greene v. United States of America (xxxvi. 247) 67, 496, 943 Gazette Printing Co. v. Shallow (xli. 339) 627, 939, 946 Genereux v. Bruneau (xlvii. 400), 56; (Cam. Prae. 294) 883 Genge, Beauvais v. (liii. 353) 58 George v. The King (xxxv. 376) 336, 341, 543 George, Green v. (xlii. 219) George, Howard v. (xlix. 75) 26, 178 Gfirvais V. McCarthy (xxxv. 14) 441,810, 926 Gibb V. McMahon (xxxvii. 362) 324, 1210 Gibb et al. v. The King (lii. 402) 493 Gibbs, Wheeler v. North Ontario Blec. Cas (Cout. Cas. 19) .3^1, 895 Gibson v. Nelson (xxxv. 181) 867 Giegerich v. Fleutot (xxxv. 327) 196, 1167 Giegerich, Newswander v. (xxxix. 354) 15, 196, 330, 376 Giffnac, Canadian Northern Quebec Ey. Co. v. (li. 136) . . . .66, 336 Gilbert v.The King (xxxviii 207) 67, 341, 870, 1102 Gilbert v. The King (xxxviii. 284) 67, 343, 444, 901 Gilchrist, Grand Trunk Ey. Co. v. (Cam. Prae. 122) 99 Gillies, Goold v. (xl. 437) .3, 223, 510 Gillies, Coffin v. (li. 539) 319 Gillies V. Brown (liii. 557) 396, 1145 Gilmour v. Simon (xxxvii. 432) 323, 932, 1049, 1083 Girard, Canadian Asbestos Co. v. (xxxvi. 13) 665, 674, 768 Giroux, Attorney-General for Canada v. (liii. 172) 361 Girvin v. The King (xlv. 167) 344, 469 Glen Falls Ins. Co. v. Adams (liv. 88) 58 Glendinning v. Cavanagh (xl. 414) 173 Glindinning v. McLeod (Cam. Prae. 498) 914 Gloster V. Toronto Electric Light Co. (xxxviii. 27) 429, 751 Gold Medal Furniture Mfg. .Co., Stephenson et al. v. (xlviii. 497) 79 INDEX TO NAMES OF CASES. 1355 PAGE. Gone, Legperance V. (xxxvi. 618) , iQg, -..f.^ Gonthier dit Bernard, Byeton v. (Gout. Gas 35o') Goodacre, Uplands Limited v. (1. 75)'. . 90, Goodall, Clarke v. (xliv. 284) '. ^g ^Zt Goodison Thresher Go. v. Township of Mcisfab '(xlii' 694)'. [ 116,' 501) 1112 Goodison v. McNabb (Cam. Prac. 289) ' qo Goold V. Gillies (xl. 437) ' ' g'^Vs 510 Goold Bicycle Co. v. Laishley (xxxv. 184) ." .' ' ' 50 Gordaneer, Dick v. (Gout. Cas. 326) YoV 874 Gordon, City of Montreal v. (Gout. Cas. 343) . 237' 6^1 Gordon, Home y. (xlii.- 240 ; Cam. Prac. 385) .. . ' ' Gordon, City of St. John v. (xlvi. 101) Gosselin v. The Ontario Bank (xxxvi. 406) '. ..lee] 851, ' 1040 Governor-General in Council, references by, In re (xliii '536)' 24-5 Gowganda Mines Ltd., Smith v. (xliv. 621) 224 1068 Gowganda Queen Mines, Boeckh v. (xlvi. 645) '. Graham, Bigelow v. (xlviii. 512) Grand Council Provincial Workmen's Assoc, McPh'erso'n etaj V- (1- 157) ■ 157 Grand'Mere, Ville de, Eicard v. (1. 122) 703 Grand Trunk Ey. Go. v. Beckett (Gam. Gas. 228) ........... 780 Grand Trunk Ey. Co. v. Birkett (xxxv. 296) 774, 986 Grand Trunk Ey. Co. v. Bready (xxxvi. 180) 454, 775' 987 Grand Trunk Ey. Co. v. Can. Pac. Ey. Go. (xxxix. 220) .'.324^ 1083, 1186 Grand Trunk Ey. Co. v. Can. Pao. Ey. Go. and City of London (Gout. Gas. 396) ." Grand Trunk Ey. Go. v. Depencier (Gout. Cas. 343) 903 Grand Trunk Ey. Co. v. Hainer (xxxvi. 180) 454. 775. 987 Grand Trunk Ey. Co. v. Huard (xxxvi. 655) 307, 988 Grand Trunk Ey. Go. v. Hughes (xxxvi. 180) 454, 775^ 987 Grand Trunk Ey. Co., James Bay Ev. Co. v. (xxxvii. 372)'. .87, 587, 959 Grand Trunk Ey. Co. v. Jones (Gam. Gas. 262) 781 Grand Trunk Ey. Go. v. McKay (xxxiv. 81) 525, 773, 985, 1090 Grand Trunk Ey. Go. v. City of London (Gout. Cas. 322) Grand Trunk Ey. Co. v. City of London (Gout. Gas. 396) Grand Trunk Ey. Co., Magann v. (Gout. Gas. 266) 631, 1164 Grand Trunk Ey. Go. v. Miller (xxxiv. 45) 667, 773, 9S5, 1090 Grand Trunk Ey. Go. v. Moore (Gout. Gas. 401) 600, 803, 903 Grand Trunk Ey. Go. v. Niagara Falls International Bridge Go. (Gout. Gas. 263) . . . .■ Grand Trunk Ey. Go. v. Perrault (xxxvi. 671) 9, 52, 958, 1098 Grand Trunk Ey. Co., Piatt v. (12 Ont. P. E. 380; Cam. Prac. 437) 114 Grand Trunk Ey. Co. v. Eobertson (xxxix. 506) 519, 1006, 1109 Grand Trunk Ey. Go. v. Sims (8 Can. Ey. Gas. 61) 782, 991 Grand Trunk Ey. Go. v. Speers (Gout. Cas. 347) 782, 875 Grand Trunk Ey. Co. v. City of Toronto (xxxvii. 210) 401, 406, 526 Grand Trunk Ey. Go. v. City of Toronto (xlii. 613) 962 Grand Trunk Ey. Co., Gitv of Toronto v. (xxxvii. 232) 239, 958 1099 Grand Trunk Ey. Co., Williams v. (xxxv. 321) 112, 1096 1356 INDEX TO NAMES OF CASES. I'AGi:. Grand Trunk Ey. Co. v. Department of Agriculture qf Ontario (xlii. 557) , 115, 961 Grand Trunk Ey. Co. v. British AmeriQan Oil Cq. (xUii. 311) . 964 Grand Trunk Ey. Co., Fralick v. (xliii. 494) 994 Grand Trunk Ey. Co., Halifax Board of Trade v. (xliv. 398) 90, 887 Grand Trunk Ey. Co. v. Griffith (xlv. 380) 784, 995, 1237 Grand Trunk Ey. 'Co. v. Canadian Oil Companies (xlvii. 155) . 966. Grand Trunk Ey. Co., Eobinson v. (xlvii. 633) 191, 368, 973 Grand Trunk Ey. Co., Bell v. (xlviii. 561) 463, 997 Grand Trunk Ey. Co., Canadian Pacific Ey. Co, v. (xlix. 535) 310, 973 Grand Trunk Ey. Co.. v. Hepworth Silica Pressed Brick Co. (U. SI) . . . 975 Grand Trunk Ey. Co. v. Gilchrist (Cam. Prae. 133) 99 Grand Trunk Pacific By. Co., In re (xlii. 505) 299, 974 Grand Trunk Pacific Ey. Co., Lewis v. (lii. 327) 601, 766 Grand Trunk Pacific Ey. Co. and Canadian Pacific Ey. Co. v. City of Port William (xliii. 412) 964 Grand Trunk Pacific Ey. Co. and White (xliii. 627) 771, 951 Grand Trunk Pacific Ey. Co. v. Brulott (xlvi. 649) ' Grand Trunk Pacific Ey. Co. v. Eochester (xlviii. 838) 739, 968 Grand Trunk Pacific Ey. Co. v. Pickering (1. 393) 998 Grand Trunk Pacific. Ey. Co., Phelan v. (li. 113) 783 Grand Talley Eailway Co. et al. Wood v. (li. 383) . i 38S Granick, British Columbia Sugar Eefining Co. v. (xliv. 105) 118, 1118 Grant v. Cameron (Cam. Cas. 239) 638 Grant v. Maclaren (Mast. S. C. Prac. 7; Cam. Prac. 71) 103 Gratton Separate School District, Eegina Public School Dis- trict V. (1. 589) 129 Graveley, Hargraft v.; West Northumberland Blec. Case (Cout. Cas. i09) 427, 890 Graves et al. v. The King (xlvii. 568) 346, 798 Great Northern Construction Co., In re Eoss v. Eoss, Barry & ^ McEae (liii. 128) ■ 117 Great Northern Ey. Co', v. Furness, Withy & Co. (xl. 455) .44, 1111 Great Northern Ey. Co. v. Ftirness, Withy & Co. (xlii. 334) . . . Great Western Ins. Co. v. Jordan (Cam. Cas. 86) . . , 571 Green v. Blackburn (xl. 647) 357, 679, 11&7 Green v. George (xlii. 319) Greene and Gaynor v. United States of America (xxxvi. 347) 67, 496, 943 Greene v. Harris (Cam. Cas. 99) 1066 Greer v. Canadian Pacific Ey. Co. (li. 338) 999 Greer v.^Faulkner (xl. 399) 19, 377, 1204 Grenier, Connolly v. (xlii. 343) Griffith, Grand Trunk Ey. Co. v. (xlv. 380) 784, 995, 1327 Griffiths V. Boscowitz (Cam. Cas. 345) 807 Grimsby Park Co. v. Irving (xli. 35) 54 Guardian Assur. Co. v. Town of Chicoutimi (li. 562) 556 Guardian Fire and Life Ins. Co. v. Quebec Ey., Light and Power Co. (xxxvii. 676) 460, 751 Guimond v. Fidelity-Phenix Fire Ins. Co. (xlvii. 316) . . . .556, 1234 Gundy v. Johnstone (xlviii. 516) IXDEX TO XAMES OF CASES. 1357 H. PAGE. Hainer, Grand Trunk Ey. Co. v. (xxxvi. 180) 454, 775, 987 Haines, Canadian Eailway Accident Ins. Co. (xliv. 386) . .280, 553 Hale, Leighton v. (Cout. Cas. 417) 82, 876 Halifax Banking Co. v. Matthew (Cam. Cas. 251) 847 Halifax Board of Trade v. Grand Trunk Eailway Co. (xliv. 398) 90, 887 Halifax, City of, v. McLaughlin Carriage Co. (sxxix. 174) . .65. 127, 208, 697, 913, 1106 Halifax, City of, v. "Walker (Cam. Cas. 569) .21, 537, 715 Halifax, City of, Nova Scotia Car Works v. (xlvii. 406) 698 Halifax, City of, v. Tobin (1. 404) 731, 763 Halifax, County of. Town of Dartmouth v. (xxxvii. 514) . .140, 1062 Halifax Election Cases (xxxvii. 601) 428, 889 Halifax Election Cases (xxxix. 401) 71, 422; (Cam. Prac. xv.) 890 Halifax Election Cases (Cout. Cas. 421) 437, 583 Halifax Electric Tramway Co., Mader v. (xxxvii. 94) .... 789, 900, 1195 Halifax and Southwestern Ey. Co. v. Shea (Cout. Cas. 418) 782, 991 Halifax and South Western By. v. Schwartz (xlvii. 590) . .996, 1134 Halifax Tramway Co., O'Connor v. (xxxvii. 533) 368, 1196 Hall, M^cFadden v. (Cam. Cas. 589) 39, 781 Halle, St. Lawrence Terminal Co. v. (xxxix. 47) 14, 1173 Halparin v. Bulling (1. 471) 657, 757 Hamburg-American Packet Co. v. The King (xxxix. 621) .146, 330, 354 Hamilton, re (Cout. Cas. 35) 338, 531 Hamilton v. The King (liv. 331) 363, 1180 Hamilton Brass Mfg. Co. v. Barr Cash and Packg. Carrier Co. . (xxxviii. 316) 5, 363, 858, 1146 Hamilton Brass Mfg. Co. v. Barr Cash and Packg. Carrier Co. (Cout. Cas. 383)), 48, 91; (Cam. Prac. 385) 91, 875 Hamilton Brewing Assn., City of Hamilton v. (xxxviii. 339). 53, 186, 734, 1103, 1337 Hamilton, City of, v. Hamilton Brewing Assn. (xxxviii. 339) . 53, 186, 724, 1103, 1337 Hamilton, City of, v. Hamilton Distillery Co. (xxxviiii. 339) . 1102, 1337 Hamilton, City of, Hamilton St. Ey. Co. v. (xxxviii. 106). T22, 1197 Hamilton, City of, Hamilton St. Ey. Co. v. (xxxix. 673) . .16, 146, 309, 545, 858, 1084 Hamilton, City of, v. Toronto, Hamilton and Bufialo Ey. Co. (1. 128) ^6^ Hamilton DistiUery Co., City of Hamilton v. (xxxviii. 239).. Hamilton Eadial Electric By. Co., County of Wentworth v. liv. 178) '^05 Hamilton St. Ey. Co. v. City of Hamilton (xxxviii. 106) . .733, 1197 Hamilton St. Ey. Co. v. City of Hamilton (xxxix. 673) . . . .16, 146, 309. 545. 858. 1084 Hamilton St. By. Co. v. Weir (li. 506) ...... ;^. •• • ... 731, 763 Hamilton St. By. Co. v. City of Hamilton (Cam. Prac. 284) . . 90 s.c.D. — 44 13S8 INDEX TO NAMES OF CASES. PAGE. Hannah, Lassell v. (xxxvii. 334) 216. 1209 Hansen, Can. Pac. Ey. Co. v. (xl. 194) 683, 902 Hanson Bros., Maclaren v. Attorney-General of Quebec and '(xlvi..656) , Harbour Commissioners of Montreal v. Sydney, Cape Breton and Montreal S.S. Co. (xlix. 627) 1138 Hardman v. Putnam (Cam. Cas. 112) 807 Hargraft v. Graveley; West Northumberland Elec. Case (Cout. Cas. 109) 427, 890 Hargrove, Eoyal Templars v. (Mast. S. C. Prac. 107) 915 Harnovis et al. City of Calgary v. (xlviii. 494) 793, 1202 Harold A. "Wilson Co., Victor Sporting Goods Co. v. (Cout. Cap. 330) 47, 883 Harris, Greene v. (Cam. Cas. 99) 1066 Harris, Jamieson v. (xxXv. 625) 658, 742, 804 Harris v. London St. Ey. Co. (xxxix. 398) 790, 1198 Hart, MacHreith v. (xxxix. 657) 16, 146, 706, 110 Harvey v. Bank of Hamilton (Cam. Cas. 129) 159 Hastings v. LeEoi No. 2 (xxxiv. 177) 663, 767 Hatfield, The "Wandrian," v. (xxxviii. 431) 37, 769, 1073 Hatton, Copeland-Chatterson Co. v. (xxxvii. 651) 273, 832 Havelock Electric Light Co., Bennett v. (xlvi. 640 ; Cam. Prac. 278) : 61 Hawkesbyry, Township of East, v. Township of Loehiel (xxxiv. 513) 464, 525, 1158 Hawthorne, Canadian Casualty and Boiler Ins. Co. v. (xxxix. 558). ." 275,383, 551 Hayes v. Day (xli. 134) 297 Hebert v. Banque Nationale (xl. 458) .160, 506, 826, 1112 Heinze, Angus v. (xlii. 416) 824, 1045 Heinze, In re; Fleitmann v. The King (lii. 15) 131 Henderson, Osborne v. (Cam. Cas. 323) 1211 Henderson v. Thompson (xli. 445) 1084, 1218 Henderson and Township of West Nissouri, In re (xlvi. 627) . Hendel'son v. West Nissouri (Cam. Prac. 287) 91 Hendry et al., Anglo-American Fire Ins. Co. v. (xlviii. 577) . . 564 Hendry et al., Montreal Canada Fire Ins. Co. v. (xlviii. 577) . 564 Hepburn, Bridgman v. (xlii. 228) Hepworth Silica Pressed Brick Co., Grand Trunk Ey. Co. v. (li. 81) 975 Heron v. Lalonde (liii. 503) 139 Herron, Como v. (xlix. 1) 177, 305 Hesseltine v. Nelles (xlvii. 230) . . : 77, 897 Hetu V. Dixville Butter and Cheese Assn. (xl. 138) .... 17, 461, 647 Hewson v. Ontario Power Co. (xxxvi. 596) 239, 869, 1097 Hiebert, Black v. (xxxviii. 557) 330, 688, 835 Hildreth v. McCormick Mfg. Co. (xxxix. 499) 832, 1109 Hildreth v. McCormick Mfg. Co. (xli. 246) 574, 833 Hill V. Hill (xxxiv. 13) 3, 843, 858, lOlS' Hill, Winnipeg Electric Eailway Co. v. (xlvi. 654) Hillman v. Imperial Elevator and Lumber Co. (liii. 15) Ill Hinrich, Canadian Pacific Ey. Co. v. (xlviii. 557) 784, 997 Hirtle V. Boehner (1. 264) Tlitchcock V. Sykes (xlix. 403) 924, 1223 INDEX TO XAMES OF CASES. 1359 PAGE. Hochberger v. Eittenberg (liv. 480) 397 945 Hoctor, Hopper v. (xxxv. 645) 222, 323,' 825^ 1082 Hogaboom v. Central Bank of Canada (Cout. Cas. 119) 46, 1249 Hogg, Shearer y. (xlvi. 492) II49' 1244 Holditch, Canadian Northern Ontario Ey. Co. v. (1. 265) . . . .' 978 Holsten v. Cockburn (xxxv. 187), 43, 868) ; Cam. Prac. 449) . , 878 Home Ins. Co. of New York, Victoria Mutual Fire Ins. Co. v. (xxxv. 208) 564, 635 "Honoreva," The, Bonham v. (liv. 51) 204 Hood, Bank of Ottawa v. (xlii. 231) Hood V. Eden (xxxvi. 476) 84, 227, &'68, 1248 Hopper V. Hoctor (xxxv. 645) 222!, 323, 825, 1082 Home V. Gordon (xlii. 840 ; Cam. Prac. 385) Hosking v. LeEoi No. 2 (xxxiv. 224) 659, 673, 768, 1091 Hotte v. Birabin (xxxv. 477) 652, 1240 Hounsome, Vancouver Power Co. v. (xlix. 430) 386, 793, 1200 Howard v. George (xlix. 75) 26, 178 Howard v. Stewart (1. 311) .- Howland & Co., Cannon v. (Cam. Cas. 119) 197 Huard, Barthe v. (xlii. 406) 455, 809 Huard, Grand Trunk Ey. Co. v. (xxxvi. 655) 307, 988 Hubert, Payson v. (xxxiv. 400) 251, 626 Hudson Bay Ins. Co., Bell Bros. v. (xliv. 419) 280. 557, 1121 Hughes, Grand Trunk Ey. Co. v. (xxxvi. 180) 454, 775, 987 Hughes V. Northern Electric and Mfg. Co. (1. 626) 226, 690 Hulbert v. Peterson (xxxvi. 324) 200, 1012 Hull, City of, and Attorney-General of Quebec v. Scott (xxxiv. 282)' 43, 1185 Hull, City of, and Attorney-General of Quebec v. Scott (xxxiv. 603)' 1026, 1166 Hull, City of, and Attorney-General of Quebec v. Scott (Cout. Cas. '364) Hull, City of, V. Scott and Walters (xxxiv. 617) 112, 171 Hull Electric Co. v. Clement (xli. 419) 66, 37S' Humberstone et al.. Clover Bar Coal Co. v. (xlv. 346) 965, 1125 Huot, Black v. (Cout. Cas. 106) 479 Hurteau, Eoss v. (Cam. Cas. 511) 1039 Hutchings v. National Life Ass. Co. (xxxvii. 124) 570, 834 Hutchins Car Eooflng Co., Burnett v. (liv. 610) 88 Hutchison V. City of Westmount (xlix. 621) 292, 718, 1138 Hutchinson v. Fleming (xl. 134) 172, 928 Hyde v. Webster (1. 295) 829 I. Imperial Bank of Canada, Fraser v. (xlvii. 313) 141, 153 Imperial Bank of Canada, Eear v. (xlii. 222) Imperial Book Co. v. Black (xxxv. 488) .248, 328 Imperial Elevator and Lumber Co., Hillman v. (liii. lo) Ill Imperial Fire Ins. Co. v. Bull (Cam. Cas. 1) . ... . . • • . ••.••■ . 564 Indian and General Investment Trust, Union Bank of Halifax V. (xl. 510) .■ •••*6^' ^f, Ing Kon, Eex v. (Cam. Prac. 288) • . . . • • ; . ■ ■ • • l^ IngersoU Telephone Co. v. Bell Telephone Co. (Im. 583) 969 1360 INDEX TO NAMES OF CASES. PAGE. "Insurance Act, 1910," In re (xlviii. 260) 244, 550 Insurance Co. of North America v. McLeod ('Cout. Cas. 214) . International and. Interprovincial Ferries, re (xxxvL 206).. 239 49S, 622, 821, 1010 International Casualty Co. et al. v. Thomson (xlviii. 167) .218, 931 International Coal and Coke Co. and the King, Paulson v. (lii. 317) 360 Inverness, County of, v. Mclsaac (xxxvii. 75) 308, 489 Inverness Ey. and Coal Co. v. Jones (xl. 45) 413, 1074 Inverness Ey. and Coal Co. v. Mclsaac (xxxvii. 134) .121, 490, 1203 Iredale v. Louden (xl. 313) 638, 1179 Irving, Grimsby Park Co. v. (xli. 35) 54 Irwin V. Campbell (li. 358) 613 Isbester, Dominion Fish Co. v. (xliii. 637) 105, 903 Ishitaka, British Columbia Land and Investment Agency v. . (xlv. 302) 202, 1041 Jackson,Canadian Pacific Ey. Co. v. (lii. 281) 381 Jackson v. Drake, Jackson & Helmcken (xxxvii. 315) 4, 448 Jackson v. Drake, Jackson & Helmcken (Cout. Cas. 384) . .582, 896 James Bay Ey. Co. v. Armstrong (xxxviii. 511) 44, 490, 1104 James Bay Ey. Co. v. Can. Pac. Ey. Co. (xxxvi. 42) James Bay Ey. Co. v. Grand Trunk Ey. Co. (xxxvii. 372) . .87, 587, 959 James Eichardson Co., Cote v. (xxxviii. 41) . .53, 329, 574, 869, 882 Jamieson, Blaine v. (xli., 25) 76, 581 Jamieson v. City of Edmonton (liv: 443) 533, 720 Jamieson v. Harris (xxxv. 625) 658, 742, 804 Jean, Montreal Pipe Foundry Co. v. (5th Nov. 1907) 331 Jeffrey, Eitchie v. (lii. 243) 292, 432 Jess, Quebec and Levis Perry Co. v. (xxxv. 693) 453, 734 Jeune Lorette, Compagnie d'Aqueduc de, v. Verrette (xlii. 156) 55 Jewell, Dioran v. (xlix. 88) 116, 1135 Jodoin Dominion Bridge Co. v. (xlvi. 624) John Deere Plow Co. v. Agnew (xlviii. 208) 313, 255 John Goodison Thresher Co. v. Township of McNab (xlii. 694). 116, 529, 1119 Johnson v. Laflamme (liv. 495) 692, 1055 Johnson, Eoche v. (liii. 18) 226 Johnson's & Co. v. Wilson (Cout. Cas. 356; Cam. Prac. 13) .... 81 Johnston v. Oliver (Cam. Cas. 338) 1176 Johnston v. Desaulniers (xlvi. 620) Johnston V. The King (xliv. 448) 365, 98.2, 1121 Johnstone, Gundy v. (xlviii. 516) Joint Stock SS. Co. v. The "Euphemia" (xli. 154), 39, 95; (Cam. Prac. xv.) 876 Jones, Grand Trunk Ey. Co. v. (Cam. Cas. 262) 781 Jones, Inverness Ey. and Coal Co. v. (xl. 45) 413, 1074 Jones, The King v. (xliv) 495) 491, 978 Jones V. Tucker (liii. 431) 80, 1088 Jordan, Great Western Ins. Co. v. (Cam. Cas. 86) 571 INDEX TO NAMES OF CASES. 1361 FAGE. Joyce, Town of Outremont v. (xliii. 611) 55 Jukes V. Fisher (xlvii. 404) 690 Julian, Quebec and Lake St. John IJy. Co. v. (xxx'yii.'632) . . "^ 459, 777, 973 K. Eahnert, Langley v. (xxxvi. 397) 167 1039 Kaiserhof Hotel Co. v. Zuber (xlvi. 651) '.'.'. V.V.'.'.V. . . .' Kalmet, Keiser v. (xlvii. 402) 84 Karavokiris, Canadian Eubber Co. v. (xliv. 303) ... .662, 759 KaTanagh, Norwich Union Fire Ins. Co. v. (Sxxvi. 7) 443^ X. ^ , ' 845^ 884 Kearney, Dickson v. (Cam. Cas. 53) 586 Keatney v. The Queen (Cam. Cas. 344) \ 977 Keiser v. Kalmet (xlvii. 402) 84 Kelly V. The King (liv. 220) '.'.','.348, 798 Kendall, Sydney Post Publishing Co. v. (xliii. 461) ' 627 Kelidriek, Wade v. (xxxvii. 32) 219 Kennedy, Quebec and Lake St. John Eailway Co. v. (xlviii. 520) ; 308, 972 Kerr Co. v. Seely (xliv. 629) 546, 612, 1030 Kerr et al., Canadian Pacific Eailway Co. v. (xlix. 33) . .25, &5, 379, 860 Kerr, Marwick and Mitchell v. (liii. 1) 839 Kilner v. "Werden (Cout. Cas. 188) 69, 873 Kincaid, Lamb v. (xxxviii. 516) 388, 677, 1204 King, The, Alberta Eailway and^Irrigation Co. v. (xliv. 505). 576, 818 King, The, Allen v. (xliv. 331) 344, 446, 796, 892 King, The, v. Armstrong (xl. 329) 18, 352, 779, 981 King, The, Bank of Montreal v. (xxxviii. 358) . .150, 367, 436, 684 King, The, Beach v. (xxxvii. 359) 374, 611, 949 King, The, Belanger v. (liv. 365) 353, 633 Ki^g, The, Bonanza Creek Hydraulic Concession v. (xl. 281) . 357, 404, 679 King, The, Boulay v. (xliii. 61) 377, 355 King, The, Burrard Power Co. and Attorney-General of British Columbia v. (xliii. 27) 254 King, The, Bonanza Creek Gold Mining Co. v. (1. 543) . . .216, 247 King, The, Booth v. (li. 30) 359 King, The, Calgary and Edmonton Land Co. v. (Cont. Cas. 271) 1169 King, The, Calgary and Edmonton Ey. Co. v. (Cout. Cas. 271) 295, 672, 1169 King, The, Can. Pac. Ey. Co. v. (xxxviii. 211) 189, 974 King, The, Can. Pac. Ey. Co. v. (xxxix. 476). . .-. . .257, 1006, 1108 King, The, Can. Pac. Ey. Co. v. ; ra Pheasant Hills Branch (xxxviii. 137) TO, 869, 1003, 1102 King, The, Can. Pac. Ey. Co. v. ; Prairie Fires Ord. (xxxix. 47g) _ 257, 1006, 1108 King, The,' Carlson v. (xiix. 180) 472, 502 King, The, Chamberlain v. (xlii. 350) 352, 951 King, The, v. Cotton (xlv. 469) 250, 1128, llo3 1362 INDEX TO NAMES OF CASES. PAGE. King, The, Curry v. (xlviii. 533) 346 King, The, Conrod v. (xlix. 577) 27, 1017. King, The, Cunard v. (xliii. 88) 368, 491 King, The, DeGalindez v. (xxxix. 683) 17, 354, 1004 King, The, Dodge v. (xxxviii. 149) 375, 444, 485 King, The, v. Desrosiers (xli. 71) 22, 660, 736, 940 King, The Ead v. (xl. 272) 68, 343 King, The, Eberts v. (xlvii. 1) 345, 797 King, The, Fleitmann v. (Hi. 15) 131 King, The, Foss Lumber Co. v. (xlvii. 130) 370, 1159 King, The, Frontenac Gas. Co.' v. (li. 594) King, The, Frocks v. (xl. 258) 678 King, The, George t. (xxxv. 376) 336, 341, 543 King, The, Gibb et al. v. (lii. 402) 493 King, The, Gilbert v. (xxxviii. 207) 67, 341, 870, 1102 King, The, Gilbert v. (xxxviii. 284) 67, 343, 444, 901 King, The, Girvin (xlv. 167) 344, 469 King, The Graves et al. v. (xlvii. 568) 346, 798' King, The, Hamilton v. (liv. 331) 362, 1180 King, The, Hamburg- American Packet Co. v. (xxxix. 621). 146, 330, 354 King, The, Johnston v. (xliv. 448) 365, 982, 1121 King, The, v. Jones (xliv. 495) 491, 978 King, The, Kelly v. (liv. 220) ; 348, 798 King, The, "Kitty D." v. (xxxiv. 673) 468, 500 King, The, Klondyke Government Concession v. (xl. 294) .357, 405, 679 King, The Labelle v. (Cout. Cas. 282) ■ King, The, Lake Champlain and St. Lavo-ence Ship Canal Co. V. (liv. 461) 364, 963 King, The, Leamy v. (liv. 143) 368, 1033 King, The, Leger v. (xliii. 164) 783, 992 King, The, Lovett v. (xliii. 106) 416, 1152 King, The, v. Lefrancois (xl. 431) 951, 983, 1110 King, The, McLean v. (xxxviii. 543) 356, 412, 677, 846 King, The, v. MacArthur (xxxiv. 570) 535, 948 King, The, Miller v. (xxxiv. 710) 664, 748, 1093 King, The, Mulvihiel v. (xlix. 587) 68, 347 King, The, The "North" v. (xxxvii. 3&-5) 253, 501, 591, 1099 King, The, Olmstead v. (liii. 450) 352, . 952 King, The, Paul v. (xxxviii. 126) 12, 769, 949 King, The, Paulson v. (lii. 317) 360 King, The, Pigott and Sons v. (liii. 626) 353 King, The, Pigott & Inglis v. (xxxviii. 501) 180, 294, 950 King,. The, Poirier v. (xlvi. 638) King, The, Quebec North Shore Turnpike Eoad Trustees v. (xxxviii. 62) 366, 435, 955 King, The, Quebec North Shore Turnpike Eoad Trustees v. (Cout. Cas. 316) 910 King, The, Quebec Jacques-Cartier Electric Co. v. (li. 594). 359, 486 King, The, Quebec, Montreal and Southern Ey. Co. v. (liii. 275) 976 King, The, Quong-Wing v. (xlix. 440) 258, 347, 1137 King, The, Eyder v. xxxvi. 462) 354, 659, 771, 845 INDEX TO NAMES OF CASES. 1363 PAGE. King, The, Saunders v. (xxxviii. 382) 343, 956, 1103 King, The, Shajoo Earn. v. (li. 392) 348 King, The, Smitheman v. (xxxv. 490) 341, 1225 King, The, Slaughenwhite v. (xxxv. 607) 341, 1226 King, The, Smith v. (xl. 358) 356, 678 King, The. Spencer Bros. v. (xxxix. 12) 370, 464, 1078 King, The, v. St. Catharines Hydraulic Co. (xliii. 595) 612 Xing, The, v. Trudel (xlix. 501) 447, 492 Kii.g, The. Trusts and Guarantee Co. v. (liv. 107) 433 King, The, Turgeon v. (li. 588) 786, 983 King, The, Tweedie v. (Hi. 197) 505, 1180 King, The, Veronneau v. (liv. 7) 349 King, The, "Wallberg v. (xliv. 208) 279, 952 King's; N. S. Elec. Case (xxxvi. 520) 427, 888 King's Asbestos Mines v. Municipality of South Thetford (xli. 585) . . 528, 717 Kingston Elec. Case, re Stewart (Cout. Cas. 21) 422 Kimber et al., McGillivray v. (lii. 146) 841 Kirkpatrick v. Birks (xxxvi. 51i) 'J' 4, 1151 Kirkpatrick v. McNamee (xxxvi. 153) S3, 373, 675, 801, 885 Kirstein Sons & Co. v. Cohen Bros, (xxxix. 286) 510, 1192 "Kitty D.," The King v, (xxxiv; 673) 468, 500 Kline Brothers & Co. v. Dominion Fire Ins. Co. (xlvii. 252) . 555, 924 Klondyke Government Concession v. The King (xl. 294) . .357, ^ 405, 679 Klondvke Government Concession v. McDonald (xxxviii. 79) . •^ 676, 1028 Knight, Oushing v. (xlvi. 555) ' 231, 1085, 1220 Knock V. Ov,-en (xxxv. 168) 329, 1079 Knock V. O.ren (Cout. Cas. 325) 331 Kny-Scheerer, Chandler & Massey v. (xxxvi. 30) 315 Kohler v. Thorold Natural Gas Co. (lii. 514) 3J2 Koop V. Smith (li. 554) ._■ 4^2, ol4 Kremer, Leonard & Sons v. (xlviii. 518') Labelle v. The King (Cout. Cas 282) • • • ■ • . . • • Labrosse, Montreal Park and Island Ey. Co. v. (xl 96) . . .54, 1021 Labrosse, Montreal St. Ey. Co. v. (Cam. Prac. 267) 60 Labrosse v. Langlois ^xli._43^ .^ .^- ■■ ■ yj-_ --^ ^^^ 983 86 Lachance, Canadian Pacific Eailway Co. v. (xlii 205)^ ...... . . Lachine, Jacques-Cartier and Maisonneuve Eailway Co., Mon- treal Tramways Co. v. (1. 84) Lachance v. Cauchon (lii. 223) • • • • • • ■ ■ • • ■ Lafierty v. Lincoln (xxxviii. 620, 625) 68, 256, 343, 1104 LaForest v. Babineau (xxxvii. 521) ll> -t^^' »^^ Laforest v. Factories Ins. Co. (lui. 396) — ^J^^ Laflamme, Johnson v. (liv. 495) ' ^^ Laine v. Bfland (Cam. Prac. 454) . ... . . • . ■ • ■ • • • • • • • • • • • • • • Laidlaw V. Crowsnest Southern Ey. Co. (xln. 355) . . .783, 892, 992 Laidlaw V. Vaughan-Ehys (xliv. 458) 633, 1364 INDEX TO FAMES OP CASES. PAGE. Laidlaw, Campbellford, Lake Ontario and Western Ey. Co. v. (1. 4:22n) , Laishley, Goold Bicycle Co. v. (xxxv. 184) 50 Lake Champlain and St. Lawrence Ship Canal Co. v. The King (liv. 461) • ..364, 962 Lake Erie and Detroit Hiv. Ey. Co. v. Marsh (xxxv. 197) . .89, 868 Lake Erie and Detroit Eiv. Ey. Co. v. MacLaughlin (Cout. Cas. 397) ■ 47, 874, 887, 1113 Lake Erie and Detroit Eiv. Ey. Co. v. Scott (Cout. Cas. 211) . . 991 Lake Erie and Northern E. Co. v. Schooley (liii. 416) 493 Lake Superior Paper Co., Dube v. (liii. 481) 758 Lalonde, Heron v. (liii. 503) ' 139 Lamarche, Prevost v. (xxxviii. 1) 823, 1102, 1149, 1242 Lamb v. Kincaid (xxxviii. 516) 388, 677, 1304 Lambert, City of Toronto v. (liv. 300) 602, 761 Lambert, St. Hilaire v. (xlii. 264) 107 Lamont, Wenger v. (xli. 603) 54, 582 Lamontagne, Brown v. (Cam. Cas. 30) '. 198 Lamontagne v. Quebec Light, Heat and Power Co. (1. 423) .... 756 ' Lamothe v. Daveley (xli. 80) 22, 54 Lamothe v. North American Itife Ass. Co. (xxxix. 333) . . .566, 599 Lamoureux v. Craig (xlix. 305) 1346 Lapointe v. Messier (xlix. 371 ) 26, 703, 947 Land and Loan Co., City of Montreal v. (xxxiv. 370) 49 Lane, DufE v. ('xlviii. 508) Langan, Newberry v. (xlvii. 114) 1085. 1173, 1221 Langdon v. Eobertson (13 Ont. P. E. 139) Langelier v. Charlebois (xxxiv. 1) 508, 561, 610, 1185 Langley, Dominion Linen Mfg. Co. v. (xlvi. 633) Langley v. Duffy (Cam. Prac. 144) 45 Langley v. Kahnert (xxxvi.. 397) 167, 1039 Langley v. Eowlands (xlvi. 626) Langlois, Labrosse v. (xli. 43) 63 Langlois & Valin; Montmorency Elec. Cas. (Cout. Cas. 16) . . Lapage, Stewart v. (liii. 337) 1250 Lapointe, Larin v. (xlii. 531) » 108, 708 Lapointe v. Montreal Police Benevolent and Pension Soc. xxxv. 5) 49, 839 Laramee v. Perron (xli. 391) 462, 1243 Lareau v. Poirier (li. 637) 1047, 1224 Laroche v. Laroche (Hi. 663) 539 Larin v. Lapointe (xlii. 531) 108, 708 Lassell c. Hannah (xxxvii. 324) 216, 1209 Laurence, Montreal Light, Heat and Power Co. v. (xxxix. 336) 430. 753 Laurentide Mica Co. v. Fortin (xxxix. 680) 171, 445, 1158 Laurentide Paper Co. v. Baptist (xli. 105) 1012, 1061 Layton, City of Montreal v. (Cam. Prac. 424) 93 Layton & Co., City of Montreal v. (xlvii. 514) 944, 1133 Lea, Canada Carriage Co. v. (xxxvii, 672) ! . . .96, 795, 1101 Leahy v. Town of North Sydney (xxxvii. 464) . .375, 488, 1026,' 1100 Leahy v. Town of North Sydney (Cout. Cas. 404) 582, 896 Leamy v. The King (liv. 143) 368, 1033 Leblanc, Wood v. (xxxiv. 627) 854, 1176 INDEX TO NAMES OF CASES. 1365 PAGE. Leblane, Wood v. (Cout. Cafe. 409) 371 §8,5 Lee, Logan v. (xxxix. 311) . .104, 234, 450, 644, 660, 755,' 872^ 1108 Lee, 'Canadian Mutual Loan and Investment Co. v. (xxxiv. 224) 48, 867 Lees, Sievewriglit v. (12 Ont. P. E. 200 ) Lefebvre, Nichols Chemical Co. v. (xlii. 402) 760 Lefrancois, The King v. (xl. 431) 951, 952, mo Lefrancois, Morel v. (xxxviii. 75) 402 474 Leger, Fournier v. (Cout. Cas. 100) Ill' 872 Leger v. The King (xli-ii. 164) 783, 992 Leighton v. Hale (Cout. Cas. 417) 82^ 876 Leonard & Sons v. Kremer (xlviii. 518) LeEoi No. 2, Hastings v. (xxxiv. 177) '. 663, 767 LeEoi No. 2, Hosking v. (xxxiv. 224) 659, 673, 768^ 1091 Leroux v. Parish of Ste. Justin (xxxvii. 321) 52, 716 Leroux v. Mcintosh (Hi. 1) 1070, 1151 Lesperanee v. Gone (xxxvi. 618) 1064, 1167 LeSueur, Morang & Co. v. (xlv. 95) 291. 643 Letourneau v. Carbonneau (xxxv. 110) 303, 673 Letourneau v. Carbonneau (xxxv. 701) 583, 895 Levine, Serling v. (xlvii. 103) 682, 859 Lewis, City of London v. (Cout. Cas. 162) 118, 873 Lewis V. Grand Trunk Pacific Ey. Co. (Hi. 227) 601, 766 Likely Co. v. Duckett & Co. (Hii. 471) 1076 Lilley, Arseott v. (Mast. S. C. Prac. 200) 104 Limoges v. Scratch (xliv. 86) 632, 1117 Lincoln, Lafferty v. (xxxvin. 620, 625) 68, 256, 343, 1104 Linde Canadian Eefrigerator Co. v. Saskatchewan Creamery Co. (li. 400) 210. 863 Liscomb Falls Gold Mining Co. v. Bishop (xxxv. 539)... 198, 480, 674, 1192 Lisgar'Elec. Case; Woods v. Stewart (Cout. Cas. 314) 427 Lloyd-Brown, Canadian Pacific Ey. Co. v. (Cam. Prac. 123) . . 70 Lochiel, Township of, Township of East Hawkesbury v. (xxxiv. 513) 464, 525, 1158' Lockhart v. Wilson (xxxix. 541) 164, 461 Lockwood, Traders Bank v. (xlvin. 593) 228, 1076 Logan V. Lee (xxxix. 311) . . .104, 334, 450, 644, 660, 755, 872, 1108 London, City of, v. Lewis (Cout. Cas. 162) 118, 873 London City of. Grand Trunk Ey. Co. v. (Cout. Cas. 322) ... . London, City of. Grand Trunk Ey. Co. v. (Cout. Cas. 396) ... . London St. Ey. Co. v. Harris (xxxix. 398) 790, 1198 London St. Ey. Co. v. City of London (Cout. Cas. 322) . . . .69, 874 London, Water Commissioners of, v. Saunby (xxxiv. 650).. 487, 1093, 1237 Long V. Toronto Eailway Co. (1. 224) 738 Longman, Cottingham v. (xlviii. 542) 84 Longmore v. McArthur (J. D.) Co. (xliu. 640) 745 "Lord's Day Act" re (xxxv. 581) 622, 645, 1010, 1095, 1155 Lott, Sydney and Glace Bay Ey. Co. v. (xlii. 220) Loudon, Iredale v. (xl. 313) 638, 1179 Loveless v. Fitzgerald (Ixii. 254) 618 Lovitt V. The King (xHH. 106) 416, llo2 1366 IXDEX TO NAMES OF CASES. PAGE. Lovitt, The "Calvin Austin" v. (xxxv. 616), 34, 651, 725, 727; (Cam. Prac. 68) 877 Lowenberg, Harris & Co., Dunsmuir v. (xxxiv. 33&) 598, 804 Lpwenberg, Harris & Co., Dunsmuir v. (Cout. Cas. 270).. 582, 595 Lowery, Booth v. (liv. 421) 727, 771 Lucas, Merchants' Bank of Canada v, (Cam. Cas. 275) 163 Lyman v. Canada Foundry Co. (Cam. Prac. 288) 91 M. MacArthur, The King v. (xxxiv. 570) 525, 948 MacDonald v. Brush (Cout. Cas. 141 ^ .46, 873 MacEwan t. Toronto General Trusts Corporation (liv. 381) . . 290 Macfarlane v. Davis (xlvii. 399) 1054 MacHreith v. Hart (xxxix. 657) 16, 146, 706, 1110 Macintosh, O'Brien v. (xxxiv. 169) 271, 1060 MacEenzie v. Monarch Life Assurance Co. (xlv. 232) 225, 469 MacKinnon, North West Theatre Co. v. (lii. 588) 144, 615 Maekinnon, Calgary & Edmonton Ry. Co. v. (xliii. 379) . .123, 977 Maclaren, Grant v. (Mast. S. C. Prac. 7) ; (Cam. Prac. 71) . . 103 Maclaren v. Attorney- General of Quebec (xlvi. 656) MacLaughlin v. Lake Erie and D. E. Ey. Co. (Cout. Cas. 297) 47, 874, 887, 1113 Maddison v. Emmerson (xxxiv. 533) 355, 854, 1092, 1176 Mader, Halifax Electric Tramway Co. (xxxvii. 94) . . 789, 900, 1195 Magann v. Grand Trunk Ey. Co. (Cout. Cas. 266) 631, 1164 Mahomed v. Anchor Fire and Marine Ins. Co. (xlviii. 546) . . . 555 Malcolm, McNichol v. (xxxix. 265) 69, 618, 656, 765 Mallory v. Winnipeg Joint Terminals (liii. 323) 475, 786 Manchester, Farrell v. (xl. 339) - 18, 217 Manitoba Assurance Co. v. Whitla (xxxiv. 191) . ., 434 Manitoba Free Press Co. v. Nagy (xxxix. 340) 15, 381, 1078 Manitoba and Forth West Land Corp. v. Davidson (xxxiv. 255) 926 Manitoba Cold Storage Co., Charrest v. (xlii. 253) Manning v. Naas (xxxvii. 236) 735, 956 March Bros, and Wells v. Banton (xlv. 338) 24, 1055, 1219 Marks, Dartmouth Ferry Commission v. (xxxiv. 366) . . . .537, 658 Marks v. Marks (xl. 210), 465, 652; (Cam. Prac. 296) . . .882, 1243 Marsh, Lake Erie and D. E. Ey. Co. v. (xxxv. 197) 89, 868 Marshall Brick Co. v. York Farmers Colonization Co. (liv. 569) 634 Marriage Laws, In re (xlvi. 132) 242, 653 Martel, Connolly v. (xlii. 242) '. Martin v. Fowler (xlvi. 119) 1130 Martineau, Dlimphy v. (xlii. 224; Cam. Prac. 542) 103, 913 Martineau, Dumphy v. (10th June, 1908), (Cam. Prac. 542) . . 876 Marwick and Mitchell v. Kerr (liii. 1) 829 Massie, Campbellford, Lake Ontario and Western Ey. Co. v. (1.409) 121 Masson v, Masson (xlvii. 42) -. 1150, 1245 Masson Ltd., Brovming v. (lii. 379) 286 Mathewson v. Burns (1. 115) 1087 Mathewson, Beatty v. (xl. 557), 317; (Cam. Prac. 497) . . .914. 1061, 1162 Matthew, Halifax Banking Co. v. (Cam. Cas. 251) 847 INDEX TO NAMES OF CASES. 1367 PAGE. Matthews, Wilks et at., v. (xlix. 91) 514, 517, 549 May & Co. v. McDougall (Cam. Cas. 449) 266 Mayrand v. Dlisault (xxxviii. 460) 84, 460, 509, 870, 1842 Meagher v. Meagher (liii. 393) 1247 Megaw, Doberer v. (xxxiv. 125) 119, 458, 589, 1091 Mehring, McPherson v.. West Lome Scrutiny (xlvii. 451) .429, 699 Meighen v. Pacaud (xl. 188) 404, 420, 1065, 1168 Meisner v. Meisner (xxxvi. 34) 325, 468, 1143 Meloche v. Deguire (xxxiv. 24) 8, 195, 340, 643, 843, 954, 1089, 1151, 1165 Menard, re (Cout. Cas. 313) '. Merchants', Bank of Canada v. Lucas (Cam. Cas. 275) 163 Merganthaler Linotype Co., Toronto Type Foundry Co. v. (xxxvi. 593) 73, 831 Merritt v. City of Toronto (xlviii. 1) 1023, 1236 Metallic Eoofing Co. v. City of Toronto (xxxviii. 693) Metallic Eoofing €o., City of Toronto v. (Cout. Cas. 38&') . .179, 270, 381 Metropolitan Life Ins. Co. v. Montreal Coal and Towing Co. (xxxv. 266) 452, 551, 800 Messier, Lapointe v. (xlix. 271) 26, 703, 947 Mey V. Simpson (xlii. 230) Midland Navigation Co. v. Dominion Elevator Co. (xxxiv. 578) 268, 1071 Miller v. Bent (Cam. Prac. 37) SO Miller v. Campbell (Cout. Cas. 280) Miller, Grand Trunk Ey. Co. v. (xxxiv. 45) . . . .667, 773, 985, 1090' Miller v. King (xxxiv. 710) ,. • • 664, 748, 1093 Miller, National Trust Co. v. (xlvi. 4J5) 34, 680 Miller v. Eobertson (xxxv. 80) 94, 545, 867 Miller, Schmidt v. (xlvi. 45) 34, 680 Miller, Trabold v. (Cout. Cas. 281) 64, 673 Milne v. Yorkshire Guarantee Corp. (xxxvii. 331) 5, 11, 937 Milligan, Toronto Eailway Co. v. (xlii. 238) Mineral Products €o. v. Continental Trusts Co. (xxxvii. 517), 675, 687 ; (Cam. Prac. 490) &94, 1012, 1069 Misener, Wabash Erd. Co. v. (xxxviii. 94) 777, 989, 1227 Mitchel, Canada Foundry Co. v. (xxxv. 452) . ., 599, 754 Mitchel, Toronto Ey. Co. v. (Cout. Cas. 349) 82, 903 MoUeur, Ville de St. Jean v (xl. 139) • .^'4, 580 MoUeur, Ville de St. Jean v. (xl. 639) 30, 3b5, 725, 1238 Molleur v. Moorehouse (Cam. Prac. 357) . . . . . . . ..... . . . ■■■■ 59 Monarch Life Assurance Co., Mackenzie v. (xlv. 333) . . . .32o, 469 Montarville Land Co. v. Economic Eealty Co (liv. 140) .. . . 59 Montmorency Elec. Case ; Valin & Langlois (Cout. Cas 16) ... Montreal, City of, v. Cantin (xxxv. 223) . 138, 636, 695 Montreal, City of, v. Gordon (Cout. Cas. 343 )_ 337, b7i Montreal, City of, v. Land and Loan Co. (xxxiv. 270) . . .... 49 Montreal, City of, v. Montreal St. Ey. Co. (xxxiv. 459) . . .307, ^^^^ Montreal, City of, Vanierv. (xxxix. 151) ... ...138, 696 1105 Montreal City of Montreal St. Ey. Co v. (xli. 427) 65 1009 Montreal, City of, v. Beauvais (xlii. 311) ^*!^. '" 1368 INDEX TO NAMES OF CASES. PAGE. Montreal, City of, v. Montreal Light, Heat & Power Co. (xlii. 431) > 276 Montreal, City of, Montreal Park & Island Ey. Co. v. (xliii. ^56) 446, 963 Montreal, City of, Montreal Street Ey. Co. v. (xliii. 197) . . 341, 962 Montreal, City of, Eiopelle t. (xHt. 579) IgEontreal, City of, v. Layton & Co. (xlvii. 514) 944, 1133 Montreal, City of, v. Layton (Cam. Prac, 424) 93 Montreal, City of^ and Canadian Autobus Coi, Eobertson v. (lii. 30) » 28, 705 , MontreaPCanada Eire Ins. Co. v. Hendry et al. (xlviii. 577) . .' 564 Montreal Coal and Towing Co., Mettopoliftan Life Ins. Co. v. (xxxv. 266) 452, 551, 800 Montreal Cold Storage and Freezing Co., re (Gout. Cas. 341). 1249 Montreal Constrnction Co.- v. Montreal St. Ey. Co. (xxxviii. 422) 316, 395 , Montreal Light, Heat and Power Co. v. Laufence (xxxix. 326) 430, 752 Montreal Light, Heat and Power Co. v. Eegan (xl. 580) . ,454, 600, 666, 744 Montreal Light, Heat and Power Co. t. Aftorney-Cfemeral of Quebec (xli. 116) 384, 1029, 1229 Montreal Light, Heat and Power Co. v, Eegan (xli. 245) ..... Montreal Light, Heat and Power Co. v. Sedgwick (xli. 639) . . Montreal Light, Heat and Power Co., City of Montreal v. (xlii. 431) 276 Montreal Light, Heat- and Power Co., Town of Westmount v. (xliv. 364) 129, 1120 Montreal Park and Island Ey. Co. v. ChSiteaugnay and Mat- tawa Ey. Co. (xxxv. 48) ; 300; 544, 702, 984, 1194 Montreal Park and Island Ey. Co. v. Labrosse (xl. 9S) 54, 1021 Montreal Park and Island Ej. Co. v. MeDougall (xxxvi.-l) . . 665, 743, 1195 Montreal- Park and Island Ey. Co. t. City of Montreal (xliii. 256) ...446, 963 Montreal Pipe Foundry Co. v. Jean (5th Nov., 1907) 331 Montreal Police Benevolent and Pension Soc, Lapointe v. (xxxv. 5) 49, 839 Montreal St. Ey. Co. v. Boudreau (xxxvi. 329) . .383, 636, 731, S16 Montreal St. Ey. Co., City of Montreal v. (xxxiv. 459) 307, 701, 1194 Montreal St. Ey. Co. v. Deslongchaffips (xxxvii. 685) Montreal St. Ey. Co. v. MeDougall (Cout. Cas. 284) 791, 1199 Montreal St. Ey. Co., Montreal CoSstruetion Co. v. (xxxviii. 422) .316, 395 Montreal St. Ey. Co. v. Montreal Terminal Ey. Co. (xxxv. 478) 87, 957 Montreal St. Ey. Co. v. Montreal Terminal Ey. Co. (xxxvi. 369) .716, 957 Montreal St. Ey. Co. v. Vincent (Cout. Cas. 309) 792, 1199 Montreal St. Ey. Co. v. City of Montreal Cxli- 427) 65, 1009 Montreal St. Ey. Co. v. City of Montreal (xliii. 197). . . .241, 962 Montreal St. Ey. Co. v. Labrosse (Cam, Prac. 267) 60 INDEX TO XAMES OF CASES. 1369 Montreal Terminal By. Co., Montreal St. By. Co v (xxxv 478) 87, 957 Montreal Terminal By. Co., Montreal St. By. Co. v (xxxvi 369) '. 716, 957 Montreal Tramways Co. v. Lachine, Jacques-Cartier and Mai- sonneuve By. Co. (1. 84) 988 Montreal Tramways Co. v. Seguin (Hi. 644) 905 Montreal Tramways Co. v. McGill (liii. 390) 63 Montreal Transportation Co. v. Xew Ontario SS. Co. (xl. 160) 38, 846, 1074 Montreal Water and Power Co. v. Devie (xxxv. 255) . .51, 382, 816 Montreal Water and Power Co., Belanger v. (1. 356) 205, 704 Montreuil Ontario Asphalt Block Co. v. (lii. 541) 1056, 1087 Mooney v. Mcintosh (Cam. Cas. 171) 1205 Moore, Canadian Xorthern Western Eailway Co. v. (liii. 51'9). ' 123, 979 Moore, Grand Trunk By. Co. (Gout. Cas. 401) 600, 803, 903 Moore v. Boper (xxxv. 533) 141, 39S, 636, 1069 Moorehouse, MoUeur v. (Cam. Prac. 257) 59 Morang & Co. v. LeSueur (xlv. 95) 291, 643 Morel V. Lefrancois (xxxviii. 75) 402, 474 Morgan-v. Avenue Eealty Co. (xlvi. 589) 831, 1065 Morgan v. Beique (xxxviii. 303) 334, 1005, 1058, 1079 Morgan v. Dt)minion Permanent Loan Co. (1. 485) 512 Moritz, Canada Wood Specialty Co. v. (xlii. 237) Morton, Anglo-American Eire Ins. Co. v. (xlvi. 653) Morton, Burgess v. (Mast. S. C. Prac. 17) 112 Muggah, ,Carstens v. (xxxvi. 612) 443, 801 Muir Estate, In re (li. 428) 253 MuUin, Ward v. (Gout. Cas. 341) 69 Mulvaney, Toronto By. Co. v. (xxxviii. 327) . .13, 383, 515, 790, 1197 Mulvihill V. The King (xlix. 587) 68, 347 Murray, Cairns v. (xxxvii. 163) . ., 4, 1099, 1209 Murphy & Co., Butler v. (xli. 618) 174, 920 Musgrave v. Angle (xliii. 484) 467 Mutual Belief Soc. of Xova Scotia v. Webster (Gam. Gas. 463) 568 Mutual Beserve Fund Life Assn., Angers v. (xxxv. 330) . .313, 336, 569, 955 Mutual Beserve Fund Life Assn. v. Dillon (xxxiv. 141) 96, 795, 907 Mutual Beserve Fund Life Assn. v. Dillon (Gout. Gas. 339) .. . Mutual Life Ins. Co., Shaw v. (xlvi. 606) 569, 923 Mutual Beserve v. Dillon (Gam. Prac. 120) 98 "Mystic,-' The SS.) The SS. "Nanna" v. j(xli. 168) 39, 729 Mc. McAllister, Ontario Bank v. (xliii. 338) -^j 152 McArthur, The King v. (xxxiv. 570) . . . ._. . • • • • ^-^, y^» McArthur (J. D.) Co., Longmore v. (xlm. 640) ....... • .... 74o McCarthy, Gervais v. (xxxv. 14) . . . ... • • .^ • 441, 810, 926 McGlellan v. Powassan Lumber Co. (xlii. 24J) .^ McGormick Mfg. Co., Hildreth v. (x^^i^- 499) §32, 1109 McCormick Mfg. Co., Hildreth v. (xli. 246) ...oA 866 1370 INDEX TO FAMES OF CASES. PAGE. McCrae, Village of Brussells v. (Cout. Cas. 336; Cam. Prac. 389) 93, 114, 874 McCutcheon, Cass v. (Cout. Cas. 386) 70, 886 McDonald, Canadian Pacific Ey. Co. v. (xlix. 163) 57, 1136 McDonald, Dt)ds v. (xxxvi. 231) 443, 636, 1161, 1171 McDonald, Dominion Iron and Steel Co. v. (xxxv. 98) 133, 695 McDonald, Klondyke Government Concession v. (xxxviii. 79) 676, 1028 McDonald, Mclsaac v. (xxxvii. 157) 1178 McDonald, McMillan Co., Weller v. (xliii. 85) 105, 903 McDonald, Vancouver, Victoria & Eastern Ry. & Navigation Co. V. (xliv. 65) 491, 649, 974 McDougall, Ainslie Mining and Eailway Co. v, (xlii. 420) .068, 744 McDougall, Ainsley Mining and Ey. Co. v. (xl. 270) . . .97, 99, 798, 907 McDougall V. Banque d'Hochelaga (xxxix. 318) 227, 631, 910 McDougall, May & Co. v. (Cam. Cas. 499) 266 McDougall, Montreal P. & I. Ey. Co. v. (xxxvi. 1).. .665, 743, 1195 McDougall, Montreal St. Ey. Co. v. (Cout. Cas. 284) 791, 1199 McFadden v. Hall (Cam. Cas. 589) .29, 781 Mn.Garvey v. McNally (xl.'489) . 1112, 1243 McGill, Montreal Tramways Co. (liii. 390) 63 McGillivray v. Kimber et al. (Hi. 146) 841 McGrade, Syndicat Lyonnais du Klondyke v. (xxxvi. 251) .106, 259, 437, 508, 620, 845, lOll, 1096, 1181, 1230 McGuire Co. v. Bridger (xlix. 633) 182, 756 McGuire v. Eraser (xl. 577) 20, 181, 378, 732 McGuire v. Ottawa Wine Vaults Co. (xlviii; 44) 539, 1230' McHugh, P., Union Bank of Canada v. (xliv. 473) . .201, 385, 1122 Mcintosh, Brownlee v. (xlviii. 588) 35S', 931 Mcintosh, Leroux v. (lii. 1) .1070, 1151 Mcintosh, Mooney v. (Cam.' Cas. 171) 1205 Mclntyre, Sovereign Bank of Canada v. (xliv. 157) 462, 1067 Mclsaac v. Beaton (xxxvii. 143) 1175, 1208, 1241 Mclsaac, Inverness, Co. of, v. (xxxvii. 75) 308, 489 Mclsaac, Inverness Ey. & Coal Co. v. (xxxvii. 134) . . .121, 490, 1203 Mclsaac v. McDonald (xxxvii! 157) 1178 McKay, Grand Trunk Ey. Co. v. (xxxiv. 81) 525, 773, 985, 1090 McKay, McLean v. (Cout. Cas. 334) \ McKay, Toronto Ey. Co. v. (Cout. Cas. 419; Cam. Prac. 199) . 99 McKay, "Wabash Erd. Co. v. (xl. 251) 779, 990 McKillop & Benjafleld v. Alexander (xlv. 551) 281, 1127, 1182 McKillop & Sons, Union Bank of Canada v. (li. 518) 210, 938 McKinnon, Doran v. (liii. 609) 286, 1145 McKinnon's Case, In re Ontario Sugar Eefining Co. (xliv. 659). 90; 1250 McKnight Construction Co. v. Vansickler (li. 374) 220 McLachlin, Phelps v. (xxxv. 482) .373, 1081 McLaughlin, Lake Erie and D. E. Ey. Co. v. (Coiit. Cas. 297), 833 ; (Cam. Prac. 445) 878 McLaughlin Carriage Co., City .of Halifax v. (xxxix. 174) . .65, 127, 208, 697, 913, 1106 McLean v. The King (xxxviii. 542) 356, 412, 677, 846 McLean v. McKay (Cout. Cas. 334) INDEX TO NAMES OE CASES. 1371 PAGE. McLean, Eural Municipality of. South Alberta Land Co. v. (liii. 151) 132 McLennan, Dominion Iron and Steel Co. v. (xsxiv. 394) . .170, 486 McLeod, Fleming v. (xxxix. 290; Cam. Prac. 69) 161, 877 McLeod, Ins. Co. of North America et al. (Cout. Cas. 214) . . McLeod V. Sawyer & Massey Co. (xlvi. 622) McLeod, Glindinning v. (Cam. Prac. 498) 914 McMahon, Gibb v. (xxxvii. 362) ■ 324, 1210 McMeakin v. Eurry (xxxix. 378) 326, 677, 1144 McMillan, American-Abell Engine and Thresher Co. v. (xlii. 377) 357 McMillan, Davies v. (Cam. Cas. 306) 1042 McMullin V. Nova Scotia Steel and Coal Co. (xxxix. 593) . .778, 990, 1110 McNab, Township of, John Goodison Thresher Co. v. (xlii. 694) 116, 529, 1119 McNab, Township of, Goodison Thresher Co. v. (xliv. 187) . . 116, 529, 1119 McNabb, Goodison v. (Cam. Prac. 289) 92 McNally, McGarvey v . (xl. 489) 1112, 1243 McNamee, Kirkpatrick v. (xxxvi. 152) 83, 373, 675, 801, 885 McNeil V. CuUen (xxxv. 510) 83. 453. 1240 McNeil V. Corbett (xxxix. 608) 678, 1144, 1184 McNeil V. Eultz (xxxviii. 198) 223, 263, 928, 1211 McNichol V. Malcolm (xxxix. 265) 69, 618, 656, 765 McNutt, In re (xlvii. 259) 86, 345, 1133 McPhalen, City of Vancouver v. (xlv. 194) 529, 717, 762 McPhee v. Esquimalt and Nanaimo Ey. Co. (xlix. 43) 806, 90'i McPherson et al. v. Grand Council Provincial Workmen's Assoc. (1.157) 15'!' McPherson v. Mehring, West Lome Scrutiny (xlvii. 451) .429, 699 McVity V. Tranouth (xxxv. 455) 637, 1117 N. Naas, Manning v. (xxxviii. 226) 'i'35, 9o6 Nagy, Manitoba Free Press Co. v. (xxxix. 340) 15, 381, 1078 Nakata, Dominion Eire Ins. Co. v. (lii. 294) 541, 560 "Nanna," The SS., v. The SS. '-Mystic" (xli. 168) 39, 729 National Ins. Co. v. Black (Cout. Cas. 30) ■ • 45 National Life Assur. Co., Hutchings v. (xxxvii. 124) 5,0, 834 National Paper Co., Whyte v. (li. 162) 933 National Trust Co., Smith v. (xlv. 618) 638, 689, 1130 National Trust Co., Miller v. (xlvi. 45) ^34 680 Nasmith, Bentley v. (xlvi. 477) •■••••;•• •..-.• -fj- \f' ^If. Naud, Canadian Northern Quebec Ey. Co. v. (xlvui. 242) . . 120, 36d Nelles, Hesseltine v. (xlvii. 230) ' '> »«^ Nelson, Gibson v. (xxxv. 181) Neufeld, ColweU et al. v. (xlviii. 506) ••••••■ ■ • ; ■ • • ■ • NevUle, Price v. Quebec West Election Case (xlii 140) .... 42o New Brunswick Penitentiary, re (Cout. Cas^ 24) . . . .236, 838, 1010 New Glasgow, Town of, v. Brown (xxxix. 586) . . .^ . ... . .706,. 1044 New Ontario SS. Co. v. Montreal Transportation Co. (^^160)- 1372 ^ INDEX TO NAMES OF CASES. PAGE. New York Herald Co. v. Ottawa Citizen Co. (xli. 229) 1193 New York Trust Co., Ahearn and Soper v. (xlii. 267) 632 Newberry v. Langan (xlvii. 114) 1085, 1173, 1221 Newswander v. Giegerich (xxxix. 354) 15, 196, 330, 376 Niagara, St. Catharines & Toronto Ey. Co. v. Davy (xliii. 277). 963 Niagara Palls International Bridge Co., Grand Trunk Ry. Co. V. (Cout. Cas. 263) Nichols Chemical Co. v. Lefebvre (xlii. 402) 760 Nightingale v. Union Colliery Co. (xxxv. 65) 191, 773, 986 Nissonri West, Henderson and. In re (xlvi.'627 Norfolk V. Eoberts (1. 283) 711 "North," The, v. The King (xxxvii. 385) 253, 501, 591, 1099 North American Life Ass. Co., Lamothe v. (xxxix. 323) . .566, 599 North British Canadian Investment Co. v. St. John School Trustees (xxxvi. 461) 64, 139, 256, 1186 North Cape Breton- Victoria Elee. Cas. (xxxvi. 542) . .425, 448, 889 North Cypress, Municipality of, v. Can! Pac. Ey. Co. (xxxv. 550) 238, 1095 North Eastern Banking Co. v. Eoyal Trust Co. (xli. 1) 74, 478,. 913 North Ontario Elec. Case (Cout. Cas. 19) .331, 895 North Shore Power Co. Duguay (xxxvii. 642) North Shore Turnpike Eoad Trustees v. The King (xxxviii. 62; Cout. Cas. 316) ._..'. 910 North Sydney, Town of, Leahy v. (xxxvii. 464) 375, 488, 1026, 1100 North Sydney, Town of, Leahy v. (Cout. Cas. 404) ,. .582, 896 North Vancouver, District of, v. Tracy (xxxiv. 133) 296, 700 Northern Crown Bank, Townsend v. (xlix. 394) 154, 1137 Northern Electric and Mfg. Co., Hughes v. (1. 626) 226, 690 Northern Life Assur. Co., Pense v. (xlii. 246) North "West Thresher Co. v. Predericks (xliv. 318) 1013, 1119, 1182 North West Theatre Co. v. MacKinnon (lii. 588) 144, 615 Norton v. Pulton (xxxix. 303) 15, 353, 799, 901, 1106 Norwich Union Eire Ins. Co. v. Kavanagh (xxxvi. 7)'. . .443, 845, 884 Nova Scotia Car Works v. City of Halifax (xlvii. 406) 698 Nova Scotia Marine Ins. Co. v. McLeod (Cout. Cas. 214) .... Nova Scotia Steel €o. v. Bartlett (xxxv. 537) 356, 441, 841, 1171 Nova Scotia Steel Co., Bartlett V. (xxxvii. 336). 460, 599, 802, 1172 Nova Scotia Steel Co. v. Bartlett (Cout. Cas. 268) Nova Scotia Steel Co. v. MeMullin (xxxix. 593) 778, 990, 1110 0. Odell, Windsor Hotel Co .v. (xxxix. 336) 498, 901 Oliver, Dominion Iron and Steel Co. v. (xxxv. 517) . .665, 774, 987 Oliver v. Johnston (Cam. Cas. 338) 1176 Olmstead v. The King (liii. 450) 352, 952 Onondaga, Township of. Armour v. (xlii. 218) Ontario Asphalt Block Co. v. Montreuil (lii. 541) 1056, 1087 Ontario Bank, Gosselin v. (xxxvi. 406) 166, 851, 1040 Ontario Bank v. McAllister (xliii. 33S) 152 INDEX TO XAMES OP OASES. 1373 ' f . , PAGE. Ontario Department of Agriculture, Grand Trunk Ey. Co. v. ,(xlii. 557) 115^ 96i Ontario Gravel Freighting Co., The "A. L. Smith" and the ' "Chinook," v. (li. 39) 40 Ontario Lumber Co., C. Beck Mfg. Co. v. (xl. 523) (j48, 1028, 1112^ 1190 Ontario Lumber Co., C. Beck Mifg. Co. v. (Cout. Cas. 422; Cam. Prac. 286) 114 876- Ontario Power Co., Hewson v. (xxxvi. 596) 239, 869,' 1097' Ontario Power Co. of 'Niagara Falls v. Township of Stamford (1-168) 131 Ontario, Province of, v. Dominion of Canada (xlii. 1) 241, 542 Ontario, Province of, Province of Quebec v. (xlii. 161) 120 Ontario Sewer Pipe Co., Thompson v. (xl. 396) 659, 735 Ontario Seed Co., Stecher Lithographic Co. v. (xlvi. 540) . .143, 199 Ontario Sugar Eefining Co., In re, McKinnon's Case (xliv. 659) 90, 1250 Ordway, Price v. (xxxiv. 145) 312 Ordway, Veilleux v. (xxxiv. 145) 83 Orr Bros., Canadian Gas Power and Launches v. (xlvi. 636) . . Osborne v. Henderson (Cam. Cas. 323) 1211 Ottawa, City of, and Can. Atlantic Ey. Co., Ottawa Electric Co. V. (xxxvii. 354) , 588, 722, 958 Ottawa, City .of, et al., Canadian Pacific Ey. Co. v. (xlviii. 257) , 109, 968 Ottawa, City of. Can. Pac. Ey. Co. v. (Mast. S. C. Prac. 176) . Ottawa, City of, Canadian Pacific Ey. Co. v. (Cam. Prac. 518) 103 Ottawa, City of, County of Carleton v. (xli. 552) 723, 960 Ottawa, City of, Faulkner v. (xli. 190") 384, 721 Ottawa, City of, Ottawa Electric Co. v. (Cout. 9as. 409) . .105, 875 Ottawa Citizen Co., New York Herald Co. v. (xli. 229) 1193 Ottawa Dairy Co. v. Sorley (xxxiv. 508) 221, 921 Ottawa Electric Co. v. City of Ottawa and Can. At. Ey. Co. (xxxvii. 354) 588', 722, 958 Ottawa Electric Co. v. City of Ottawa and Can. At. Ey. Co. (Cout. Cas. 409) 105. 875 Ottawa Electric Co., Consumers' Electric Co. v. (Cout. Cas. 311) Ottawa Fire Ins. Co., Can. Pac. Ey. Co. v. (xxxix. 405) . .248, 309, 561 Ottawa Fire Ins. Co., Can. Pac. Ey. Co. v. (Mast S. C. Prac. -|gg\ Ottawa Northern and Western Ey. Co. v. Dominion Bridge Co. (xxxvi 347) 229, 262, 387, 845 Ottawa Winfi Vaults Co., McGuire v. (xlviii. 44) 539, 1230 Ottawa and New York Ey. Co. et al.. Township of Cornwall v. (lii. 466) :■■■■■■■■::■■■ Ouimet, La Societe Permanente de Construction des Artisans V. (Cout. Cas. 82) • • • " *^ Ouimet, Bazin v. (xlvi. 502) 250, 11^1 Outremont, Town of, v. Joyce (xliu. Sll) • ■ • ^^ Owen, Knock v. (xxxv. 168) ^^9' 1"^^ Owen, Knock v. (Cout. Cas. 325) ^^-^ s.c.D. — 45 1374 INDEX TO NAMES OP CASES. , PAGE. Owen Sound, Town of, Sinclair v. (xxxix. 236) 641, 730, 1107 Owens, DeGaliendez v. (Gout. Cas. 393) 83, 875 Oxford, County of. City of Woodstock v. (xliv. 603) 685, 702 O'Brien v. O'Brien (Cam. Cas. 382) 803 O'Brien v. Mackintosh (xxxiv. 169) 371, 1060 O'Cain, Audette y. (xxxix. 103) 817, 1064 O'Cain, Audette v. (Cout. Cas. 423) 48 O'Connor v. Halifax Tramway Co. (xxxvii. 533) .368, 1196 O'Donnell, Confederation Life Assn. of Can. v. (Cam. Cas. 154) 449 O'MuUin, Carney v.; Halifax Elec. Cases (Cout. Cas. 421) 427, 583 O'Eeilly, Garland Sons & Co. v. (xliv. 197) 303, 417 P. Pacaud, Meighen v. (xl. 188) 404, 4a0, 1065, 1168 Paget, Toronto Eailway Co. v. (xlii. 488) 1115 Pagnuelo v. Choquette (xxxiv. 102) 8, 312, 508, 1053, 1316, 1333 Paquet v. Dufour (xxxix. 332) 498, 748 Paquette, Copeland-Chatterson v. (xxxviii. 451) 833 Paquette, Eoyal Electric Co. v. (xxxv. 202) 661, 738 "Parisian," The v. The "Albano" (xxxvii. 284) 36, 738 "Parisian," The v. The "Albano" (xxxvi. 301) . . .36, 113, 869, 940 Paradis v. Cardin (Eichelieu Election Case) (xlviii. 625) .... 42S' Park, Banks v. (Cam. Cas. 200) 836 Parker, Capital Life Assur. Co. v. (li. 463) 436, 570 Parent and Chalifour, Canadian Pacific Ey. Co. v. (li. 334) 370, 999 Paterson Timber Co., Canadian Pacific Lumber Co. v. (xlvii. 398) Pattison, City of St. John v. (Cam. Cas. 537) 714 Paul V. The King (xxxviii. 136) 13, 769, 949 Paulson V. The King ei al. (Hi. 317) 360 Payette, Desaulniers v. (xxxiv. 1) 73, 338 Payette, Fontaine v. (xxxvi. 613) 70, 830, 1019 Payson v. Hubert (xxxiv. 400) 351, 626 Peace, Chamberlain Metal Weather Strip Co. v. (xXxvii. 530) . 831 Peacock v. Wilkinson et al. (li. 319) 933 Pearce v. City of Calgary (liv.) 1) 58, 126 Pearson v. Adams (1. 204) 1045 Pearson -v. Carpenter & Son (xxxv. 380) 178, 927 Pense v. Northern Life Assur. Co. (ylii. 246) People's Bank of Halifax v. Estey (xxxiv. 429) 434, 1053 People's Life Ins. Co. v. Tattersall (xxxvii. 690) Periard v. Bergeron (xlvii. 289) 471, 1052 Perrault, Grand Trunk Ey. Co. v. (xxxvi. 671) 9, 52, 958, 1098 Perras, Peters v. (xlii. 244, 361) 917 Perusse, Ehodes v. (xli. 264) 528, 919 Peterboro, County of, County of Victoria v. (Cam. Cas. 608) . 716 Peterborough West Election Case (xli. 410) 434, 1114 Peters v. Perras (xlii. 244, 361) 917 Peters v. Sinclair (xlviii. 57) 531 Peterson, Hulbert v. (xxxvi. 324) 200, 1012 Pheasant Hills Branch, Can Pac. Ey., re (xxxviii. 137) 70, 869, 1003, 1102 INDEX TO XAMES OF CASES. 1375 Page Phelan v. Grand Trunk Pacific Ry. Co. (li. 113) 7^5 Phelps V. McLaehlin (xxxv. 483) ^" 273" joS] Pickering, Grand Trunk Pacific Ey. Co. v. (1. 393)..""' ' 993 Pickles V. China Mutual Ins. Co. (xlvii. 429) .[[.' 571 Pictou Elec. Cas. (xxxvi. 542) .'.' ' 425 448 Pigott & Inglis V. The King (xxxviii. 501 )..... . .' .' .' .'iso,' 294 950 Pigott and Sons v. The King (liii. 626) '....' 352 Pioneer Bank v. Canadian Bank of Commerce (liii. 570) . .167. 530 Piper, Roberts v. (Cam. Prac. xi.) 80; (Cam. Prac. 443) ..... 891 Pitt V. Dickson (xlii. 478) 400 1054 Piatt V. Grand Trunk Ey. Co. (13 Ont. P. E. 380; Cam. Prac' 437) : 114 Plisson V. Dtmcan (xxxvi. 647) 608, 1008 Plourde, Gauvreau v. Temiseouata Election (xlvii. 311),.. 73' 433, 1132 Poirier v. The King (xlvi. 638) Poirier, Lareau v. (li. 637) 1047, 1334 Polushie V. Zackl)'nski (xxxvii. 177) 406,' 1167 Pommerenke, Coy v. (xliv. 543), 6, 69, 837, 915; (Cam. Prac' 593) 914 Pontbriand, La Cie., v. La Cie. de Nav. Chateauguay et B^au- harnois (xlvi. 603) Ponton V. City of Winnipeg (xli. 18, 306) 186, 331, 707, 1114 Porter v. Purdy (xli. 471 ) 617, 847 Pouiiot, Eouleau v. (xxxvi. 36) 51, 1189 Pouliot, Eouleau v. (xxxvi. 334) 507, 1096, 1189 Pouliot T. Town of Praserville (liv. 310) 48'9, 713 Powassan Lumber Co., McClellan v. (xlii. 349) Power V. Attorney-General of ISTova Scotia (xxxv. 183) 1340 Power V. Price; Quebec West ElectioTi Case (xlii. 140) 435 Prairie City Oil Co. v. Standard Mutual Eire Ins. Co. (xliv. 40) .- 559, 1117 Prairie Fires Ordinance, re (xxxix. 476) 257, 1006, 1108 Prescott V. Trapp & Co. (1. 363) Prevost V. Bedard (li. 634, 149) \ 319, 584, 646 Prevost V. Lamarche (xxxviii. 1) 823, 1102, 1149, 1343 Prevost v. Prevost (xxxv. 193) 113, 1148 Price y. Ordway (xxxiv. 145) 313 Price V. Chicoutimi Pulp. Co. (li. 179) 309, 638 Price, Chicoutimi Pulp Co. v. (xxxix. 81) 14, 64, 330, 871 Price v. JSTeville; Quebec West Election Case (xlii. 140) 435 Price Power v. Quebec West Election Case (xlii. 140) 435 Price, Tanguay v. (xxxvii. 657) 13, 1023, 1037 Price Bros. v. Tanguay (xlii. 133) 55 Pringle, Whyte v. (Cam. Prac. 388) 91 Pringle, White Packing Co. v. (xlii. 691) 89 Pringle v. Anderson (1. 451) ... : 1246 Proskouriakofl, Emperor of Eussia v. (xlii. 326) Provident Savings Life Assn. of New York v. Belle w (xxxv. 35) 272, 566 Provincial Fire Ins. Co. of Canada, The Evangeline Fruit Co. V. (li. 474) 557 Pszenicnzy, Canadian Northern Ey. Co. v. (liv. 36) 1001 Purdy, Porter v. (xli. 471) 617, 847 - ---- -rr-.-A _ /n„„ O a, 112) 807 1376 INDEX TO XAMES OF CASES. Q. PAGE. Quebec and Lake St. John Ey. Co. v. Julien (xxxvii. 632) . .459, Quebec and Lake St. John Ey. Co. v. Kennedy (xlviii. 520) 208, 973 Quebec and Levis Ferry Co. v. Jess (xxxv. 693) 453, 734 Quebec Light, Heat and PoT^er Co., Lamontagne v. (1. 423) . . 756 Quebec, Jacques-Cartier Electric Co. v. The King (li. 594) .359, 486 Quebec, Montreal and Souther Eailway Co. v. The King (liii. 275) 976 Quebec North Shore Turnpike Eoad Trustees v. The King (xxxviii. 62) 366, 435, 955 Quebec North Shore Turnpike Eoad Trustees v. The King (Cout. Cas. 316) , 910 Quebec, Province of, v. Province of Ontario (xlii. 161) 120 Quebec Ey., Light and Power Co. v. Fortin (xl. 181) 461,^ 752 Quebec Ey., Light and Power Co. v. Guardian Fire and Life' Ins. Co. (xxxvii. 676) 460, 751 Quebec Ey., Light and Power Co. v. Eecorder's Court (xli. 145) 590, 1008 Quebec Ey., Light, Heat and Power Co., Vandry et al. v. (liii. 72) 754 Quebec Southern Ey. Co., City of Sorel v. (xxxvi. 686) .10, 143, 699 Quebec Timber Co, re (Cout. Cas. 43) 212, 237, 622, 1010 Quebec West Election Case; Price v. Neville, Power v. Price ' (xlii. 140) 425 Queen, The, Kearney v. (Cam. Cas. 344) 977 ' Queen, The, Wright v. (Cout. Cas. 151) Quevillon, St. Denis v. (li. 603) 614 Quinlan, City of St. John v. (xlvi. 101) 613 Quirk, Thompson, Codville & Co. v. (Cam. Cas. 436) 1S9 Quong-Wing v. The King (xlix. 440) 258, 347, 1137 E. "Eailway Act, 1904," re (xxxvi. 136) 238, 775, 1005 Eamsay, District of West Vancouver v. (liii. 459) 532, 719 Eandall v. Ahern & Soper (xxxiv. 698) 451, 751, 800 Eay et al. v. Willson (xlv. 401) 164, 923 Eaynor, Toronto Power Co. v. (li. 490) 661 Eead v. Cole (lii. 176) 1080 Eear v. Imperial, Bank of Canada (xlii. 222) Eecorder's Court, Quebec Eailway, Light and Power Co. v. (xli. 145) 590, 1008 Eed Mountain Ey. Co. v. Blue (xxxix. 390), 600, 902, 989; (Cam. Prac. 444) ; 891 Eeddy v. Strople (xliv. 246) 406, 1169 Eeferences by Governor-General in Council, In re (xliii. 536) . 242 Began, Montreal Light, Heat and Power Co. v. (xl. 580) . .454, 600, 666, 744. Eegan, Montreal Light, Heat and Power Co. v. (xli. 245) .... Eegina Board of Trade, Canadian Pacific Ey. Co. v. (xliv. 328) 90, 911 INDEX TO NAMES OP CASES. 1377 PAGE. Eegina Public School District v. Gratton Separate School Dis- trict (1. 589) 129 Eegina Eates Case (slv. 321) '. 118, 911, 965, 1124 Eenton v. Gallagher (xlvii. 393) 648' Eeser v. Yates (xli. 577) 173, 1050 Eex V. Ing Kon (Cam. Prac. 388) 91 Eheaume v. Stuart (xlvii. 394) 77 Ehodes v. Perusse (xli. 264) 528, 919 Eicard v. Villa de Grand'Mere (1. 122) 703 Eichard, re (xxxviii. 394) 188, 521, 911, 1103 Eichardson & Sons, Beamish v. (xlix. 596) 175, 932 Eichelieu and Ontario Navigation Co., The "Cape Breton" v. (xxxvi. 564) ..35, 725, 728, 868, 940 Eichelieu and Ontario Navigation, Dixon v. (Cam. Cas. 66) . . 192 Eichelieu Election Case (Paradis v. Cardin (xlviii. 635) 428 Eiopelle v. City of Montreal (xliy. 579) Bioux, St. Lawrence Terminal Co. v. (xxxix. 47) 14, 1173 Eioux V. St. Lawrence Terminal Co. (xl. 98) 404, 1060, 1168 Eispin, In re, Canada Trust Co. v. Davis (xlvi. 649) Eistin V. Pairchild (xxxix. 374) 274, 631 Eitchie, Burke v. (Cout. Cas. 365) 407, 6S'3 Eitchie Contracting and Supply Co. and Attorney-General for British Columbia, Attorney-General for Canada and Van- couver Harbour Commissioners v. (lii. 78) 348, 584 Eitchie V. Jeffreyv (lii. 343) 392, 432 Eitchie, Sawyer & Massey Co. v. (xliii. 614) 378 Eittenberg, Hochberger v. (liv. 480) 397, 946 Eiviere-Ouelle Co., St. Anne Pish & Game Co. v. (Cam. Prac. 607) 916 Eiviere-Ouelle Pulp and Lumber Co., Club de Chasse et de Peche Ste.- Anne v. (xlv. 1) 517, 1031 Eobb V. Stafford (Cout. Cas. 411) 82, 875 (Cam. Prac. 575) . . 914 Bobert, County of Elgin v. (xxxvi. 27) 115, 578, 868 Eoberts v. Donovan (Mast. S. C. Prac. 27; Cam. Prac. 189) . . 113 Eoberts, Norfolk v. (1. 283) 711 Eoberts v. Piper (Cam. Prac. xi., 80 ; (Cam. Prac. 443) 891 Eobertson v. City of Montreal and Canadian Autobus Co. (lii. 30) 38, 705 Eobertson, Grand Trunk Ey. Co. v. (xxxix. 506) . . . .519, 1006, 1109 Eobertson, Langdon v. (13 Ont. P. E. 139) Eobertson, Miller v. (xxxv. 80) 94, 545, 867 Eobinson, Can. Northern Ey. Co. v. (xxxvii. 541) 58S', 959 Eobinson, Canadian Northern Ey. Co. v. (xliii. 387) 33, 992 Eobinson v. Grand Trunk By. Co. (xlvii. 632) 191, 268, 972 Eobinson, Ljttle & Co. v. Scott & Son (xxxviii. 490) 53, 870 Eobinson, Little & Co v. Scott & Son (xxxix. 281) . .142, 397, &'35 Eobinson, Canadian Northern Ey. Co. .(xliii. 387) .33, 992 Eobinson, T. D., & Son, Can. Northern Ey. Co. v. (Cout. Cas. 394) ^''' ^^^ Eobinson, Toronto St. Ey. Co. v. (Cout. Cas. 260) Eoche, Borden; Halifax Elec. Cases (Cout. Cas. 431) 427 Eoche V. Johnson (liii. 18) ^^^ Eochon, Fauvreau v. (xlvi. 647) • • ■ ■_• • • • ■ • • • • v • • Eochester, Grand Trunk Pacific Ey. Co. v. (xlvni. 338) . .739, 968 1378 IjSTDEX to NAMES OF CASES. PAGB. Eockwell, "Wood v. (xxxviii. 165) 801, 900 Eodd V. County of Essex (xliv. 137) 369, 649, 708 Rogers v. Duncan (Cam. Cas. 352) 420 Boots et al. v. Carey (xlix. 211) 1086, 1222 Roman Catholic Schools, Teachers in (Cam. Prac. 74) 877 Eoper, Moore v. (xxxv. 533) 141, 395, 636. 1069 "Rosalind," The SS., v. The SS. Senlac Co. (xli. 54) 38, 770 Rose, St. George Pulp and Paper Co. v. (xxxvii. 687) Ross V. Chandler et al. (xlv. 127) 827, 922 Ross V. Gannon (xxxix. 675) 158, 454; (Cam. Prae. 296) .882, 1079 Ross V. Ross, Barry & McRae, In re Great !N"orthern Construc- tion Co. (liii. 128) 117 Ross et al. v. The King (Hi. 402) Ross V. Hurteau (Cam. Cas. 511) 1039 Rouleau v. Pouliot (xxxvi. 26) 51, 1189 Rouleau y. Pouliot (xxxvi. 224) 507, 1096, 1189 Rowland v. City of Edmonton (1. 520) 532, 1015 Rowlands, Langley v. (xlvi. 626) Rowntree v. Sydney Land and Loan Co. (xxxix. 614) 219, 685 Roy, Compagnie Electrique Dorchester v. (xlix. 344) 1033 Roy, Cliche v. (xxxix. 244) ' 403, 1064 Roy, St. John Lumber Co. v. (liii. 310) Ill, 334 Royal Bank of Canada, Ball et al. v. (lii. 254) 155, 169 Royal Electric Co. v. Paquette (xxxv. 202) 661, 738 Royal Guardians v. Clarke (xlix. 229) 283, 567 Royal Ins. Co. v. Whitla (xxxiv. 191) 563 Royal Paper Mills Co. v. Cameron (xxxix. 365) 666, 743, 902 Royal Templars v. Hargrove (Mast. S. C. Prac. 107) 915 Royal Trust Co., Deschenes Electric Co. v. (xxxix. 567).. 275, 403 Royal Trust Co., North-Eastern Banking Co. v. (xli. 1) 74 Royal Triist Co., North Eastern Banking Co. v. (xli. 1) . .478, 913 Rudolph, The "Arranmore" v. (xxxviii. 176.... 36, 468, 729, 869, 1072 Rundle et al.. Trusts and Guarantee Co. v. (lii. 114) 66 Rutland Rrd. Co. v. Beique (xxxvii. 303) .'. 1005, 1058, 1079 Rutledge v. United States Savings and Loan Co. (^xxxvii. 546) . . . . ' ; 11, 637, 1101 Rutledge v. United States Savings and Loan Co. (xxxviii. 103) .329, 895 Ryan, Tureotte v. (xxxix. 8) 655, 755 Ryder v. The King (xxxvi. 462) 354. 659, 771, 845 Ryley Hotel Co., Pinseth v. (xliii. 646) .■ ' 108 Ryley Hotel Co., Finseth v. (xliv. 321) 591, 641, 1119 S, Sandberg v. Ferguson (xxxv. 476) 674 Sandon Water Works and Light Co. v. Byron N. White Co. (xxxv. 309) ' 94, 230, 4S8, 545, 844, 913 Saskatchewan Creamery Co., Linde Canadian Refrigerator Co. V. (li. 400) 210, 863 Saskatchewan Land and Homestead Co. v. Calgary and Ed- monton Ry. Co. (li. 1) 492, 979 liVDEX TO XAMES OF CASES. 1379 PAGE. Saunby, Water Commissioners of London v. (xxxiv. 650) . .487, 1093 1237 Saunders, Bradley v. (Cout. Cas. 380) .' Saunders v. The King (xxxviii. 382) '. .'343^ 956, 1103 Sawyer & Massey Co. v. Eitchie (xliii 614) !....' 278 Sawyer & Massey Co., McLeod v. (xlvi. 623) Scheuerman v. Seheuerman (lii. 625) -. 394 947 Schlomann v. Dowker (Cam. Prac. 89) .' ' 88 Schmidt, Carruthers & Co. v. (liv. 131) [ 174 Schmidt v. Miller (xlvi. 45) '24, 680 Schooley, Lake Brie and Northern Ey. Co. v. (liii. 416) ' 493 Schools, re Brothers of Christian' (Cout. Cas. 1) 236, 622 Schwartz, Halifax and South Western Eailway Co. v. (xlvii.' 590) 996, 1134 Schwartz, Winnipeg Electric Ey. Co. v. (xlix. 80) 498, 904 Scott, Attorney-Greneral of Quebec and City of Hull v. (xxxiv. 282) 43, 1185 Scott, Attorney-General of Quebec and City of Hull v. (xxxiv. 603) 1026, 1166 Scott, Attorney-General of Quebec and City of Hull (Cout. Cas. 264) Scott, Bateman v. (liii. 145) 57 Scott, Lake Erie and Detroit Eiv. Ey. Co. v. (Cout. Cas. 211) 991 Scratch, Limoges v. (xliv. 86) 632, 1117 Scott & Son, Eobinson,- Little & Co. v. (xxxviii. 490) 53, 870 Scott & Son, Eobinson, Little & Co. v. (xxxix. 281) .142, 397, 835 Scott V. Swanson (xxxix. 229) ' 142, 68S, 1107 Scott & Walters, City of Hull v. (xxxiv. 617) 112 171 Sculthorpe, Stewart v. (Cout. Cas. 152) 114, 873 Sculthorpe, Stewart v. (Mast. S. C. Prac. 27) Sears v. City of St. John (Cam. Cas. 486) 616 Securities Holding Co., Conmee v. (xxxviii. 601) 176, 852 Securities Holding Co., Sutherland v. (xxxvii. 694) Sedgwick v. Montreal Light, Heat & Power Co. (xli. 639) .... Seeley, In re (xli. 5) 343, 607, 608 Seely, Erancis Kerr Co. v. (xliv. 629) 546, 612, 1030 Seivewright v. Lees (12 Ont. P. E. 200) Seguin, Montreal Tramways Co. v. (lii. 644) 905 Serling v. Levine (xlvii. 103) 682, 859 Shajoo Eam v. The King (li. 392) 348 Shallow, Gazette Printing Co. v. (xli. 339) 627, 939, 946 Shantz, In re (Cam. Prac. 289) 93 Sharkey v. 'Yorkshire Ins. Co. (liv. 92) 553 Sharpe Construction Co. v. Masson Ltd. (lii. 379) 286 Shaw V. Mutual Life Ins. Co. (xlvi. 606) 569, 923 Shawinigan Carbide Co. v. Doucet (xlii. 281) 744 Shawinigan Carbide Co. v. St. Onge (xxxvii. 688) Shawinigan Carbide Co., Willson v. (xxxvii. 535) 74, 579 Shawinigan Hydro-Electric Co. v. Shawinigan Water & Power Co. (xliii. 650) 88 Shawinigan Hydro-Electric Co. v. Shawinigan Water & Power Co. (xlv. 585) 'J'll, 1139 Shawinigan Water and Power Co., Shawinigan Hydro-Electric Co. V. (xlv. 58-5) • 711> 1129 1380 INDEX TO JSTAMES OF CASES. PAGE. Shawinigan Water and Power Co., Shawinigan Hydro-Electric Co. V. (xliii. 650) 88 Shea, Halifax and Southwestern Ey. Co. v. (Cout. Cas. 418) 782, 991 Shearer v. Hogg (xlvi. 493) , 1149, 1244 Sheets v. Tait (Cout. Cas. 158) 437, 1187 Shelburne-Queens Elec. Case (xxxvi. 537) 424, S'88 Shelburne-Queens Elec. Case (xxxvii. 604) 422, 444, 890 Shragge, Weidman. v. (xlvi. 1) 306, 6S6 Sievert v. Brookfield (xxxv. 494) 372, 617, 655, 731 Simard, Thompson v. (xli. 217) 405, 1065, 1070 Simard, Wampole v. (xxxix. 160) 235, 263, 375 Simon, Gilmour v. (xxxvii. 422) 323, 922, 1049, 1083 Simpson, May v. (xlii. 230) Sims, Grand Trunk Ey. Co. v. (8 Can. Ey. Cas. 61) 782, 991 Sinclair v. Coulthard (Cam. Prac. 30) 80 Sinclair v. Town of Owen Sound (xxxix. 236) 641, 720, 1107 Sinclair, Peters v. (xlviii. 57) 531 Singer v. Singer (Hi. 447) , 1247 Sirois, -Carrier v. (xxxvi. 221) .' . . 51, 1018, 1233 Sissiboo .Pulp and Paper Co., .S., Jtlorgan Smith Co. v. (xxxv. 93) . 182, 630, 1094 Sisters O'f Charity of Providence in British Columbia v. City- of Vancouver (xliv. 39) . , 135, 465, 1116 Siven, Temiskaming Mining Co. v. (xlvi. 643) Skinner, Crown life Ins! Co. v. (xliv. 616) 76, 897 Slater, Waugh-Milburn Construction Co. v.' (xlviii. 609) . .699, 737 Slaughenwhite v. The King (xxxv. 607) 341, 1236 Sloane, Toronto Hotel Co. v. (Cout. Cas. 356) . . , Smith, Canadian Northern Ontario Ey. Co.' v. (1. 476) . . .110, 862 Smith V. China Mutual Ins. Co. (xlvii. 429) 571 Smith V. Gowganda Mines, Ltd.- (xliv. 621) 234, 1068 Smith V. The King (xl. 258) 356, 678 Smith, Koop v. (li. 554) 472, 514 Smith V. National Trust Co. (xlv., 618) ' .638, 689, 1130 Smith V. Eural Municipality of Vermilion Hills (xlix. 563) . . 128, 258, 1138 Smith V. Sugarman (xlvii. 392) 144 Smitheman, ex part^ (xxxv. 189) . . . i 340, 838 Smitheman v. The King (xxxv. 490) . .341, 543, 1225, 1233 S. Morgan Smith Co. v. Sissiboo Pulp and Paper Co. (xxxv. 93) 1S2, 630, 1094 Snell V. Brickies (xlix. 360) 318, 1233 Snider, Webster v. (xlv. 396) 317, 1045, 1218 Societe Perinanente de Construction des Artisans, Ouimet v. (Cout. Cas. 82) 45 Sorel, City of, v.. Quebec Southern Ey. Co. (xxxvi. 686). 10, .. 143, 699 Sorley, Ottawa Dairy Co. v. (xxxiv. 508) 221, 921 Southern Alberta Land Co. v. Eural Municipality of McLean (liii. 151) 132 South Vancouver, Municipality of, Anderson v. (xlv. 435) . 130, 640, 710, 1136 Sovereign Bank of Canada v. Mclntyre (xliv. 157) 463, 1067 INDEX TO NAMES OE CASES. 1381 PAGE. Spada, Baldocchi t. (xxxviii. 577) 396, 514 598 Speers, Grand Trunk Ey. Co. v. (Cout. Cas. 347) 783, 87-5 Spencer v. Alaska Packers' Assn. (xxxv. 362) 599, 808j 899 Spencer Bros. v. The King (xxxix. 12) 370, 464^ 1078 . Spindler v. Farquhar (Cout. Cas. 364) Spinney, Union Bank of Halifax v. (xxxviii. 187) 151, 394 Sprague, In re (Cam. Prac. xiii.) 63 Springdale School Municipality, Can. Pac. Ey. Co. v. (xxxv. 550) 9, 133, 238, 314, 109.-) St. Ann's Election Case (xxxvii. 563) 424, 464, 845, 889 St. Anne Eish & Game Club v. Eiviere-OueUe Co. (Cam. Prac. 607) 916 St. Aubin V. Desmarteau (xliv. 470) 5, 56 St. Catharines Hydraulic Co., The King v. (xliii. 595) 612 St. Charles, Turgeon es qual. v. (xlviii. 473) 109, 642 St. Clair Navigation Co., The "D. C. Whitney" v. (xxxviii. 303) 37, 590, 1072 St. Denis v. Quevillon (li. 603) .' 614 St. Gfiorge Pulp and Paper Co. v. Eose (xxxviii. 687) St. Hilaire v. Lambert (xlii. 264) 107 St. Jean, Ville de, v. MoUeur (xl. 139) 74, 580 St. Jean, Ville de, v. Molleur (xl. 629) 20, 265, 725, 1238 St. John, City of, Abbott v. (xl. 597) 127, 251> 697 St. John, City of, Connolly v. (xxxv. 186) 272 St. John, City of, v. Pattison (Cam. Cas. 537) 714 St. John, City of. Sears v. (Cam. Cas. 486) 616 St. John Pilot Commissioners v. Cumberland Ey. and Coal Co. (xxxviii. 169) 840, 1072 St. John School District, North British Canadian Investment Co. V. (xxxvi. 461) 64, 139, 256, 1186 Ste. Justine, Parish of, Leroux v. (xxxvii. 321) 53, 716 St. Lawrence Terminal Co. v. Halle (xxxix. 47) 14, 1173 St. Lawrence Terminal Co. v. Eioux (xxxix. 47) 14, 1173 St. Lawrence Terminal Co., Eioux v. (xl. 98) 404, 1060, 1168 St. Louis, Town of. Citizens' Light and Power Co. v. (xxxiv. 495) 83, 437, 448, 57S "St. Magnus," The, (Mast. S. C. Prac. 158) ; . . 103 St. Onge, Shawinigan Carbide Co. v .(xxxvii. 688) St. Mary's Young Men's Total Abstinence & Benevolent Soc. v. Albee (xliii. 288) 611 Ste. Therese de Blainville, Village of, Desormeaux v. (xliii. 82) 112 St. Valier, Syndics de, v. Catellier (Cout. Cas. 302) . .72, 579, 649 Saint John, City of v. Gordon (xlvi. 101) 613 Saint John, City of v. Quintan (xlvi. 101) 613 St. John Lumber Co. v. Eoy (liii. 310) Ill, 334 Stafford, Eobb v. (Cout. Cas. 411), 82, 875; (Cam. Prac. 575) 914 Stamford, Township of, Canadian Niagara Power Co. v. (1. 168) 131 Stamford, Township of. Electrical Development Co. of Ontario V. (1. 168) 131 Stamford, Township of, Ontario Power Co. of Niagara Palis v. /■] "lfiQ^ ioi standard Mutual" Fire Ins. Co. v. Thompspn (xli. 491).. .559, '1115 Standard Mutual Fire Ins. Co., Prairie City Oil Co. v. (xhv. ^n\ 5o9, 1117 1383 IXDEX TO NAMES OF CASES. PAGE. Standard Trust Co. v. Treasurer of Manitoba (li. 438).. 253, 1154 Star Mining and Milling Co., Byron N. White Co. v. (xli. 245, 377) .480, 679, 940, 1114 SteamsMp Senlac Co., The SS. "Eosalind" v. (xli. 54) 38, 770 Steeher Lithographic Co. v. Ontario Seed Co. (xlvi. 540). 143, 199 Stephen v. Black (Cout. Cas. 217) 201, 398, 1044 Stephenson, Eraser v. (Cam. Cas. 214) 445 Stephenson et al. v. Gold Medal Eurniture Mfg. Co. (xlviii. 497) 79 Stevens v. Eisk (Cam. Cas. 393) 41^ Stewart, Howard v. (1. 311) Stewart, re; Kingston Elec. Case (Cout. Cas. 31) 433 Stewart v. LePage (liii. 337) 1250 Stewart v. Sculthorpe (Cout. Cas. 153) 114, 873 Stewart v. Sculthorpe (Mast. S. C. Prac. 37) 437 Stewart, Woods v.; Lisgar Elec. Case (Cout. Cas. 314) . . .437, 890 Stobart, Sons & Co., Calloway v. (xxsv. 301) 319, 937, 1049 Stocks, Boulter v. (xlvii. 440) 313, 1054 Stone V. Canadian Pacific Ey. Co. (xlvii. 634) 1134 Stone, Theatre Amusement Co. v. (1. 33) 33U Stratton v. Burnham, West Peterborough Election Case (xli. 410) .434, 1114 Stratton v. Vachon (xliv. 395) '. .173, 929 Stratford Euel, Ice, Cartage and Construction Co., In re, Brown v. Coughlin (1. 100) 938 Strati, Toronto Construction Co. v. (xlvi. 631) Street v. Can. Pacific Ey. Co. (Cam. Prac. 301) 101 Strople, Eeddy v. (xliv. 346) 406, 1169 Stuart, Davidson v. (xxxiv. 315) 750 Stuart V. Bank of Montreal (xli. 516), 302, 538, 654, 1089; (Cam. Prac. 8) 878 Stuart, Eheaume v. (xlvii. 394) 77 Sugarman, Smith v. (xlvii. 392) 144 "Sunday Observance Act," re (xxxv. 581 ) 348 Sutherland v. Securities Holding Co. (xxxvii. 694) Svensson v. Bateman (xlii. 146) 107 Swanson, Scott v. (xxxix. 339) 143, 688, 1107 Swift, David v. (xliv. 179) 23, 132, 279 Sydney, Cape Breton and Montreal SS. Co., Harbour Commis- sioners of Montreal v. (xlix. 637) 1138 Sydney and Glace Bay Ey. Co. v. Lott. (xlii. 330) Sydney, City of, Attorney-General of Canada v. (xlix. 148) 36, 671, 1032, 1135 Sydney, City of, Burt v. (1. 6) 380 Sydney, City of, v. Chappell Bros. & Co. (xliii. 478) 708 Sydney Land and Loan Co., Eowntree v. (xxxix. 614) . . . .219, 685 Sydney Post Publishing Co. v. Kendall (xliii. 461) 627 Sydney, Town of North, Leahy v. (xxxvii. 464). 375, 488, 1026, 1100 Sydney, Town of North, Leahy v. (Cout. Cas. 404) 582, 896 Sykes, Hitchcock v. xlix. 403) 934, 1333 Syndicat Lyonnais du Klondyke v. Barrett (xxxvi. 279) . .374, 509, 1317 Syndicat Lyonnais du Klondyke v. McGrade (xxxvi. 251) 106, 259, 437, 508, 630, 845, 1011, 1096, 1181, 1330 Syndics de St. Valier v. Catelier (Cout. Cas. 202) ... .73, 579, 649 INDEX TO XAMES OF CASES. 1383 T. PAGE. Tait, Sheets v. (Gout. Gas. 158) 437 ngy Tait, British Golumbia Electric Ey. Go. v. (liv. 76) .' 98 Tanguay v. Canadian Electric Light Go. (xl. 1) 17, 367, 1033/1028,' 1064 Tanguay, Price Bros. v. (xlii. 133) 55 Tanguay v. Price (xxxvii. 657) 13, 1023, 1027 Tattersall People's Life Ins. Go. v. (xxxvii. 690) Teachers ta Eoman Catholic Schools (Cam. Prac. 74) 877 Tellier, re (Cout. Gas. 110) 339, 532 Temisconata Election, Plourde v. Gauvreau (xlvii. 211)... 72, 423, 1132 Temiscouata Ey. Go. v. Glair (xxxviii. 230) 13, 115, 855, 870, 1102, 1203 Temiskaming and Northern Ontario Ey. Go. v. Wallace (xxxvii. 696) Temiskaming Mining Go. v. Siven (xlvi. 643) Theatre Amusement Co. v. Stone (1. 32) 220 Thetford South, Municipality of. King's Asbestos Mines v. (xli. 585) 528, 717 Thompson, Gorbin v. (xxxix. 575) 264, 330, 376 Thompson v. Coulter (xxxvi. 261) 450, 482 Thompson t. Ontario Sewer Pipe Go. (xl. 396) 659, 735 Thompson, Codville & Co. v. Quirk (Gam. Gas. 436) 199 Thompson, Equity Fire Ins. Co. v. (xli. 491) 559, 1115 Thompson, Henderson v. (xli. 445) 1084, 1218 Thompson v. Simard (xli. 217) 405, 1065, 1070 Thompson, Standard Mutual Fire Ins. Go. v. (xli. 491) . .559, 1115 Thompson, Yoekney v. (1. 1) 1014 Thomson, International Casualty Go. et al. v. (xlviii. 167) . . 218, 931 Thomson v. Willson (li. 307) 691 Thorne, Bustin v. (xxxvii. 532) 96, 808 Thorold Natural Gas Co., Kohler v. (lii. 514) 292 Tobin, City of Halifax v. (1. 404) 721, 763 Toms, Toronto Eailway Go. v. (xliv. 268) 385, 740 '•'Tordenskjold," The SS. v. The SS. "Euphemia" (xli. 154) 39, 95 ; (Cam. Prac. xv.) 876 Toronto, City of, Cartwright et al. v. (1. 215) 136 Toronto, City of. Grand Trunk Ey. Go. v. (xxxvi. 210).. 401, 406, 526 Toronto, City of, v. Grand Trunk Ey. Co. (xxxvii. 232) . . .239, 958, 1099 Toronto, City of. Grand Trunk Eailway Go. v. (xlii. 613) .... 962 Toronto, City of, v. Lambert (liv. 200) 602, 761 Toronto, City of, Merritt v. (xlviii. 1^ 1023, 1336 Toronto, City of, MtetaUic Eoofing Co. v. (xxxvii. 693) Toronto, City of, v. Metallic Eoofing Co. (Gout. Gas. 388) . . 179, 270, 381 Toronto, City of, v. Metallic Eoofi'ng Co. (Gam. Prac. 12) .... 81 Toronto, City of, Toronto Ey. Go. v. (liii. 222) 969 Toronto, City of, Toronto Ey. Go. v. (xxxvii. 430).. 309, 1100, 1196 Toronto Construction Co. v. Strati (xlvi. 631) Toronto Electric Light Co., Gloster v. (xxxviii. 27) 429, 7ol 1384 IKDBX TO NAMES OF CASES. PAGE. Toronto, Hamilton and Buffalo Ey. Co., Birely v. (Cout. Cas. 18'4) 886 Toronto, Hamilton and Buffalo Ey. Co., City of Hamilton v. (1. 128) 968 Toronto Hotel Co. v. Sloane (Cout. Cas. 356) Toronto Power Co. v. Eaynor (li. 490) 669, 757 Toronto General Trusts Corporation, MacBwan v. (liv. 381) . . 390 Toronto Ey. Co., Brenner v. (xl. 540) 791, 805, 1198 Toronto Ey. Co. v. City of Toronto (xxxvii. 430) . ...309, 1100, 1196 Toronto Ey. Co. v. 'City of Toronto (liii. 323) 969 Toronto Ey. Co. v. King (Cam. Prac. 199 )» 100 Toronto Ey. Co., Long v. (1. 334) 738 Toronto Ey. Co. v. McKay (Cout. Cas. 419; Cam. Prac. 199) . 99 Toronto Ey. Co. v. Milligan (xlii. 338) Toronto Ey. Co. v. Mitchell (Cout. Cas. 349) ^83, 903 Toronto Ey. Co. V. Mulvaney (xxxviii. 327) .13, 383, 515, 790, 1197 Toronto Ey. Co. v. Paget (xlii. 488) 1115 Toronto Ey. Co. v. Toronto (Cam. Prac. 187) 66 Toronto Ey. Co. v. Toms (xliv. 268) 385, 740 Toronto Ey. Co. v. Fleming (xlvii. 612) 793, 1200 Toronto St. Ey. Co. v. Eobinson (Cout. Cas. 260) 53, 89, 873 Toronto Suburban Ey. Co. v. Everson (liv. 395) 494, 980 Toronto Type Foundry Co. v. ,Mergenthaler Linotype Co. (xxxvi. 593) 73, 831 Townsend v. IsTorthern Crown Bank (xlix. 394) 154, 1137 Trabold v. Miller (Cout. Cas. 381) 64, 673 Tracy, District of North Vancouver v. (xxxiv. 133) 396, 700 Traders Bank v. Lockwood (xlviii. 593) .338, 107,6 Tranouth, McVitty v. (xxxvi. 455) 637, 1177 Traplin, Canada Woollen Mills Co. v. (xxxiv. 434) 664, 743 Trapp & Co., Prescott v. (1. 263) Travers v. Casey (xxxiv. 419) 1239 Travfes v. Forrest (xlii. 514) 680 Travis v. Breckenridge-Lund Lumber & Coal Co. (xliii. 59). Treasurer of Manitoba, Standard Trust Co. v. (li. 438).. .253, 1154 Trecothic Marsh, re (xxxvii. 79) 134, 194, 1098 Troop V. Everett (Cout; Cas. 131) 183, 929, 1059, 1075 Trudel, The King v. (xlix. 501) 447, 492 Trust & Loan Co. of Canada v. Wurtele (xxxv. 663) 361, 936 Trustees of Quebec North Shore Turnpike Eoad v. The King (xxxviii. 62 ; Cout. Cas. 316) Trustees of St. John School District, North British Canadian Investment Co. v. (xxxv. 461) 336 Trusts and Guarantee Co. v. Bundle et al. (lii. 114) 66 Trusts and Guarantee Co. v. The King (liv. 107) 433 Tucker, Jones v. (liii. 431) 80, IOS'8 ^'upper, British and Foreign Bible Society v. (xxxvii. 100) 451, 1341 Turcotte v. Eyan (xxxix. 8) 655, 755 Turgeon es qual. v. St. Charles (xlviii. 473) 109, 642 Turgeon v. The King (li. 588) 786, 983 Turner, Ancient Order of United Workmen of Quebec v. (xliv. 145) 156, 46S, 566 Turner et al., British Columbia Electric Ey. Co. v. (xlix. 470) 640, 861, 1017, 1137 IXDBX TO NAMES OF CASES. 1335 PAGE. Turner v. Cowan (xxxiv. 160) .. .^ 221 8S4 Turner V. Cowan (Gout. Gas. 306) .. ' ^aa Tweedie v. The King (lii. 197) V.V.'.V. VoV 1180 Two Mountains Election^ Case, Eauteux v. Ethier (xlvii.'lSS)' 426, 471, 1132 U. Union Bank of Canada V. Brigham (Gout. Gas. 355) Union Bank of Canada v. Clark (xliii. 299) '.'.483 1156 Union Bank of Canada, Dominion Bank v. (xl. 366) . .'I'g/lSl' 162 7fi4- Union Bank of Canada v. F. McHugh (xliv. 473) . . . .201, 385' 1122 Union Bank of Canada v. McKillop & Sons (li. 518) ' 21o' 938 Union Bank of Halifax v. Dickie (xli. 13) 75, 550' 581 Union i^ank of Halifax v. Indian and General Investment Trust (xl. 510) 4g3 g^Q Union Bank of Halifax v. Spinney (xxxviii. 187) 151^ 394 Union Colliery Co., Nightingale v. (xxxv. 65) 191, 773,' 986 Union Investment Go. v. Wells (xxxix. 625) 161^ 572' 811 Union Investment Co. v. Wells (xli. 244) . .' .' Uplands Limited v. Goodacre (1. 75) 284 United States of America, Gaynor and Greene v. (xxxvi. 247) 67, 496, 942 United States Fidelity and Guarantee Co., Town of Arnprior v. . (li- 94) 553^ 1157 United States Savings and Loan Co., Eutledge v. (xxxvii. .546) 11^ 637, 1101 United States Savings and Loan Co., Eutledge v. (xxxviii. 103) 329, 895 V. A'achon, Stratton v. (xliv. 395) 173, 929 Yalin and Ontario Lumber Co., C. Peck Mfg. Co. v. (xl. 523) 648, 1028, 1112, 1190 Valin & Langlois; Montmorency Elec. Case (Gout. Gas. 16) . . Valiquette v. Eraser (xxxix. 1) '. . . 668, 732, 1228 Vancini, re (xxxiv. 621) •. 237, 336, 340, 1093 Vancouver Breweries v. Dana et al. (lii. 134) 615 Vancouver, City of, Clark v. (xxxv. 121) 1184, 1S08 Vancouver, City of, t. Gummings (xlvi. 457) 470, 718, reS ^'aneouver, City of. Sisters of Charity of Providence in Brit- ish Columbia v. (xliv. 29) 135, 465, 1116 Vancouver, City of, v. McPhalen (xlv. 194) 529, 717, 762 Vancouver Harbour Commissioners, Attorney-General for Can- ada and, V. Eitchie Contracting and Supply Co. and At- torney-General for British Columbia (lii. 78) 248, 524 Vancouver Power Co. v. Hounsome (xlix. 430) 386, 793, 1200 Vancouver Ey. Co., Delta v. (Cam. Prac. 90) 63 Vancouver, Victoria & Eastern Ey. & Navigation Co. v. Mc- Donald (xliv. 65) 491, 649, 974 Vancouver, Victoria and Eastern Ey. and Xavigation Co. et al, British Columbia Electric Ey. Co. v. (xlviii. 9S)) . . . .244, 967 Vancouver, West District of, v. Eamsay (liii.. 459) 1386 INDEX TO NAMES OE CASES. PAGE. Vandry et al. v. Quebec Eailway, Light, Heat and Power Co. (liii. 12) 754 Vansiekler, McKnight Construction Co. v. (li. 374) gao Vanier v. City of Montreal (xxxix. 151) .138, 696, 1105 Vaughan v. Eastern Townships Bank (xli. 286) 575, 1029, 1113 Vaughan-Ehys, Laidlaw v. (xliv. 458) 633, 1163 Veilleux v. Ordway (xxxiv. 145) 83 Veilleux, Boulevard Heights v. (lii. 185) 1139 Velasky, Western Canada Power Co. v. (xlix. 423) '. . 753 Vermilion Hills, Eural Municipality of, Smith y. (xlix. 563) 128, 258, 1138 Yeronneau v. The. King (liv. 7) 349 Verrette, Compagnie d'Aqueduc de la Jeune-Lorette v. (xlii. 156) 55 Victor Sporting Goods Co. v. Harold Wilson Co. (Cout. Cas. 330) 47, 833 Victoria, County of, v. County of Peterboro (Cam. Cas. 608) . . 716 Victoria Mutual Eire Ins. Co. v. Home Ins. Co. of New York (xxxv. 208) 564, 635 Vincent v. Montreal St. Ey. Co. (Cout. Cas. 309) 792, 1199 Vipond V. Eurness, Withy & Co. (liv. 521) 190 Vivian & Co., Clergue v. (xli. 607) . . . -. 266, 1058 Vivian & Co. v. Clergue (li. 527) 1046, 1284 "Vulcan" Trade Mark, In re (li. 411) 1193 W. Wabash Erd. Co. v. McKay (xl. 251) 779, 990 Wabash Erd. Co. v. Misener (xxxviii. 94) 777, 989, 1227 Wade V. Kendrick, (xxxvii. 32) 219 Wadsworth v. Canadian Eailway Accident Ins. Co. (xlix. 115) 282, 552 Waghorn, Gwynn & Co., Castleman v. (xli. 88') 22, 224, 1036 Wald, Winnipeg Electric Ey. Co. v. (xli. 431) 378, 601, 808 Walker, City of Halifax v. (Cam. C^s. 569) 21, 527, 715 Wallace, Temiskaming and Northern Ontario Ey. Co. v. (xxxvii. 696) Wallberg, The King v. (xliv. 208) 279, 952 Walters et aZ., City of Hull v. (xxxiv. 617) 112, 171 Wampole v. Simard (xxxix. 160) 235, 263, 375 "Wandrian," The, v. Hatfield (xxxviii. 431) 37, 769, 1073 Warburton v. Attorney-General . of Canada (Cout. Cas. 307).. Ward V. MuUin (Cout. Cas. 341) 69 Warren v. Eorst (Cam. Prac. 127) 98 Warren, Gzowski & Co. v. Eorst & Co. (xlvi. 642) Water Commissioners of London v. Saunby (xxxiv. 650) . .487, 1093, 1237 Waugh-Milburn Construction Co. v. Slater (xlviii. 609).. 669, 737 Webster, Hyde v. (1. 295) 829 Webster, Mutual Eelief Soc. of Nova Scotia v. (Cam. Cas. 463) 568 Webster v. Snider (xlv. 296) 317, 1045, 1218 Weidman v. Shragge (xlvi. 1) 306, 686 Weir, Hamilton Street Ey. Co. v. (li. 506) 721, 763 Weller v. McDonald, McMillan Co. (xliii. 85) 105, 903 INDEX TO XAMES OF CASES. 1387 PAGE. Wells, Union Investment Co. v. (xxxix. 625) 191, 773, 986 Wells, Union Investment Co. v. (xli. 244) Wenger v. Lamont (xU. 603) 54, 583 Wentworth, County of, r. Hamilton Eadial Electric Ev. Co. (liv. 178) " 705 Wentworth Elec. Caise (xxxvi. 497) 145', 423 Werden, Kilner v. (Cout. Cas. 188) 69, 873 West V. Corbett (xlvii. 596) 639, 982 West Lome Scrutiny, McPherson v. Mehring ' (xlvii. 451) .429, 699 West jSTissouri, In re Henderson and Township of (xlvi. 627) . West Nissouri, Henderson v. (Cam. Prac. 287) 91 West Northumberland Elec. Case (Cout. Cas. 109) 427, 890 West Vancouver, District of, v. Eamsay (liii. 459) 532, 719 Western Assurance Co. v. McLeod (Cout. Cas. 214) Western Canada Power Co., Bergklint v. (1. 39) 747 Western Canada Power Co. v. Bergklint (liv. 285) 660, 737 Western Canada Power Co. v. Velasky (xlix. 423) 753 Western Counties Ey. Co. v. Windsor and Annapolis Ey. Co. (Cout. Cas. 11) ! . . 72, 412 Westmount, City of, Hutchison v. (xlix. 621) 392, 718, 1138 Westmount, Town of, Montreal Light, Heat and Power Co. v. (xliv. 364) ■ 129, 1130 Wheeler v. Gibbs; Xorth Ontario Elec. Case (Cout. Cas. 19) 331, 895 Whieldon et al. v. Eoyal Bank of Canada (lii. 254) White V. Beique (xxxvii. 303) 1005, 1058, 1079 White, Grand Trunk Pacific Ey. Co. v. (xliii, 627) 771, 951 White Co., The Byron N., Sandon Water Works and Light Co. V. (xxxv. 309) 94, 230, 488, 545, 844, 913 Whiting V. Blondin (xxxiv. 453) 9, 2-1 Whitla, Manitoba Assurance Co. v. (xxxiv. 191) 434 Whitla, Eoyal Ins. Co. v. (xxxiv. 191'. . .' 563 Whitman Pish Co., Winnipeg Pish Co. v. (xli. 453) . . . .1038, 1234 "Whitney," The D. C, v. St. Clair Navigation Co. (xxxviii. 303) 37, 590, 1072 Whyte V. National Paper Co. (li. 162) 933 Whyte V. Pringle (Cam. Prac. 288) 91 Whyte Packing Co. v. Pringle (xlii. 691) 89 Wilkinson, British Columbia Electric Ey. Co. v. (xlv. 263) . 193, 734, 994 Wilkinson, et al.. Peacock v. (li. 319) 933 Wilks et al. v. Matthews (xlix. 91) 514, 517, 549 Willett, Chambly Mfg. Co. v. (xxxiv. 502) 271, 3T2, 477, 583, 867, 1025 Williams v. Box (xliv. 1) 503, 1115, 1174 WiUiams v. Grand Trunk Ey. Co. (xxxv. 331) 112, 1096 Willox, Battle v. (xl. 198) 265, 377 WiUson V. Shawinigan Carbide Co. (xxxvii. 535) 74, 579 Willson, Bay et al. v. (xlv. 401) 164, 923 WiUson, Thomson v. (li. 307) • • • 691 Wilson, Township of Arundel v. (Cout. Cas. 210) 526, 716 Wilson, Corporation of Delta v. (Cout. Cas. 334; Cam. Prac. 131) f 95, 99, 795 Wilson, Johnson's Co. v. (Cout. Cas. 356; Cam. Prac. 13) ... . 81 1386 INDEX TO FAMES OP CASES. PAGE. Vandry et al. v. Quebec Eailway, Light, Heat and Power Co. (liii. 73) 754 Vansickler, McKnight Construction Co. v. (li. 374) 320 Vanier v. City of Montreal (xxxix. 151) .138, 696, 1105 Vaughan v. Eastern Townships Bank (xli. 286) 575, 1029, 1113 Vaughan-Ehys, Laidlaw v. (xliv. 458) 633, 1163 Veilleux v. Ordway (xxxiv. 145) 83 Veilleux, Boulevard Heights v. (lii. 185) 1139 Velasky, Western Canada Power Co. v. (xlix. 423) '. . 753 Vermilion Hills, Eural Municipality of, Smith v. (xlix. 563) 128, 258, 1138 Veronneau v. The. King (liv. 7) 349 Verrette, Compagnie d'Aqueduc de la Jeune-Lorette v. (xlii. 156) 55 Victor Sporting Goods Co. v. Harold Wilson Co. (Cout. Cas. 330) 47, 833 Victoria, County of, v. County of Peterboro (Cam. Cas. 608) . . 716 Victoria Mutual Eire Ins. Co. v. Home Ins. Co. of New York (xxxv. 208) 564, 635 Vincent v. Montreal St. Ey. Co. (Cout. Cas. 309) 792, 1199 Vipond V. Furness, Withy & Co. (liv. 521) 190 Vivian & Co., Clergue v. (xli. 607) . . . , 266, 1058 Vivian & Co. v. Clergue (li. 527) 1046, 1224 "Vulcan" Trade Mark, In re (li. 411) 1193 W. Wabash Erd. Co. v. McKay (xl. 251) 779, 990 Wabash Erd. Co. v. Misener (xxxviii. 94) 777, 989, 1227 Wade V. Kendrick, (xxxvii. 32) 219 Wadsworth v. Canadian Eailway Accident Ins. Co. (xlix. 115) 282, 552 Waghorn, Gwynn & Co., Castleman v. (xli. 88) 22, 224, 1036 Wald, Winnipeg Electric Ey. Co. v. (xli. 431) 378, 601, 808 Walker, City of Halifax v. (Cam. Cas. 569) 21, 527, 715 Wallace, Temiskaming and Northern Ontario Ey. Co. v. (xxxvii. 696) Wallberg, The King v. (xliv. 208) 279, 952 Walters et al. City of Hull v. (xxxiv. 617) 112, 171 Wampole v. Simard (xxxix. 160) 235, 263, 375 "Wandrian," The, v. Hatfield (xxxviii. 431) 37, 769, 1073 Warburton v. Attorney-General of Canada (Cout. Cas. 307).. Ward V. Mullin (Cout. Cas. 341) 69 Warren v. Eorst (Cam. Prac. 127) 98 Warren, Gzowski & Co. v. Eorst & Co. (xlvi. 642) Water Commissioners of London v. Saunby (xxxiv. 650) . .487, 1093, 1237 Waugh-Milburn Construction Co. v. Slater (xlviii. 609).. 669, 737 Webster, Hyde v. (1. 295) 829 Webster, Mutual Eelief Soc. of Nova Scotia v. (Cam. Cas. 463) 568 Webster v. Snider (xlv. 296) 317, 1045, 1218 Weidman v. Shragge (xlvi. 1) 306, 686 Weir, Hamilton Street Ey. Co. v. (li. 506) 731, 763 Weller v. McDonald, McMillan Co. (xliii. 85) 105, 903 INDEX TO XAMES OF CASES. 1387 PAGE. Wells, Union Investment Co. v. (xxxix. 625) 191, 773, 986 "Wells, Union Investment Co. v. (xli. 24i) Wenger v. Lamont (xH. 603) 54, 582 Wentworth, County of, v. Hamilton Eadial Electric Ey. Co. (liv. 178) 705 Wentworth Elec. Calse (xxxvi. 497) 148', 423 Werden, Kilner v. (Gout. Cas. 188) 69, 873 West V. Corbett (xlvii. 596) 639, 982 West Lome Scrutiny, McPherson v. Mehring ' (xlvii. 451) .429, 699 West Nissouri, In re Henderson and Township of (xlvi. 627) . West Nissouri, Henderson v. (Cam. Prac. 287) 91 West Northumberland Elec. Case (Cout. Cas. 109) 427, 890 West Vancouver, District of, v. Eamsay (liii. 459) 532, 719 Western Assurance Co. v. McLeod (Cout. Cas. 214) Western Canada Power Co., Bergkliat v. (1. 39) 747 Western Canada Power Co. v. Bergklint (liv. 285) 660, 737 Western Canada Power Co. v. Velasky (xlix. 423) 753 Western Counties Ey. Co. v. Windsor and Annapolis Et. Co. (Cout. Cas. 11) I.. 72, 412 Westmount, City of, Hutchison v. (xlix. 621) 292, 718, 1138 Westmount, Town of, Montreal Light, Heat and Power Co. v. (xliv. 364) 129, 1120 Wheeler v. Gibbs; North Ontario Elec. Case (Cout. Cas. 19) 331, 895 Whieldon et al. v. Eoyal Bank of Canada (lii. 254) White V. Beique (xxxvii. 303) 1005, 1058, 1079 White, Grand Trunk Pacific Ey. Co. v. (xliii, 627) 771, 951 White Co., The Byron N., Sandon Water Works and Light Co. v. (xxxv. 309) 94, 230, 488, 545, 844, 913 Whiting V. Blondin (xxxiv. 453) 9, 271 Whitla, Manitoba Assurance Co. v. (xxxiv. 191) 434 Whitla, Eoyal Ins. Co. v. (xxxiv. 191 'i . .' 563 Whitman Pish Co., Winnipeg Fish Co. v. (xli. 453) 1038, 1234 "Whitney," The D. C, v. St. Clair Navigation Co. (xxxviii. 303) 37, 590, 1072 Whyte V. National Paper Co. (li. 162) 933 Whyte V. Pringle (Cam. Prac. 288) 91 Whyte Packing Co. v. Pringle (xlii. 691) 89 Wilkinson, British Columbia Electric Ey. Co. v. (xlv. 263). 193, 734, 994 Wilkinson, et al. Peacock v. (li. 319) 933 Wilks et al. v. Matthews (xlix. 91) 514, 517, 549 Willett, Chambly Mfg. Co. v. (xxxiv. 502) 271, 372, 477, 583, 867, 1025 Williams V. Box (xliv. 1) 503, 1115, 1174 WiUiams v. Grand Trunk By. Co. (xxxv. 321) 112, 1096 WiUox, Battle v. (si. 198) 365, 377 Willson V. Shawinigan Carbide Co. (xxxvii. 535) 74, 579 Willson, Bay et al. v. (xlv. 401) 164, 923 Willson, Thomson v. (li. 307) • • • 691 Wilson, Township of Arundel v. (Cout. Cas. 210) 526, 71^ Wilson, Corporation of Delta v. (Cout. Cas. 334; Cam. Prac. 131) f 95, 99, 795 Wilson, Johnson's Co. v. (Cout. Cas. 356; Cam. Prac. 13) ... . 81 1388 ^ INDEX TO NAMES OP CASES. PAGE. Wilson, Lockhart v. (xxxix. 541) 164, 461 Windsor and Annapolis Ey. Co., Western Counties Ey. Co. v. (Cout. Cas. 11) 72, 412 Windsor and Essex Lake and Shore Eapid Ey. Co. v. Essex Terminal Ey. Co. (xl. 620) 589, 960 Windsor Hotel Co. v. Odell (xxxix. 336) 498, 901 Winnipeg, City of, v. Brock et al. (xlv. 271) 718, 1124 Winnipeg, City of, Canadian Northern Ey. Co. v. (liv. 589) .. . 137 Winnipeg, City of. Ponton V. (xli. 18, 306) 186, 331, 707, 1114 Winnipeg Electric St. Ey. Co. v. Bell (xxxvii. 515) 789, 1196 Winnipeg Electric Eailway Co. v. Hill (xlvi. 654) Winnipeg Electric Ey. Co. v. Schwartz (xlix. S'O) 498, 904 Winnipeg Electric Ey. Co. v. Wald (xli. 431) 378, 601, 808 Winnipeg Eish Co. v. Whitman Fish Co. (xli. 453) 1038, 1234 Winnipeg Joint Terminals, Mallory v. (liii. 323) 475, 786 Winteler v. Davidson (xxxiv. 274) 49 Winter, Gault Bros. v. (xlix. 541) 168, 1014 Wood, Canadian Pacific Ey. Co. v. (xlvii. 403) 995 Wood V. Gauld (liii. 51) 830 Wood V. Grand Valley Eailway Co. et al (li. 283) 289 Wood V. Leblanc (xxxiv. 627) 854, 1176 Wood V. Leblanc (Cout. Cas. 409) 371, 885 Wood V. Eockwell (xxxviii. 165) 801, 900, Woods V. Stewart;' Lisgar Elec. Case (Cout. Cas. 314) 890, 427 Woodstock, Town of, Carleton Woollen Co. v. (xxxviii. 411) -134, 696, 1104 Woodstock, City of, v. County of Oxford (xliv. 603) 685^ 702 Woolsey, Canadian Northern Ey. Co. v> (Cam. Prac. 202) 102 World Building Co., Champion v. (1. 3S2) 109 Wright V. The Queen (Cout. Cas. 151) Wurtele, Trust and Loan Co. of Canada v. (xxxv. 663) . . .261, 936 Y. Yates, Eeser v. (xli. 577) 173, 1050 Yick Chong. Bing Kee and Lung Chung v. (xliii. 334) 612; (Cam. Prac. 444) 891 Yockney v. Thompson (1. 1) 1014 York V. City of Edmonton (xlii. 363) 134, 697 York Farmers Colonization Co., Marshall Brick Co. v. (liv. 569) 634 Yorks'hire Guarantee Corp., Milne v. (xxxvii. 331) 5, 11, 937 Yorkshire Ins. Co., Sharkey v. (liv. 92) 553 Yukon Election Case (xxxvi. 495) -. . .425, 443, 889 Z. Zacklynski, Polushie v. (xxxvii. 177) 406, 1167 Zuber, Kaiserhof Hotel Co. v. (xM. 651) Zwicker, Farquhar v. (xli. 30) 304, 815 Hii» iii: ^iillii 'lii^